Gujarat High Court
Dakshaben Dahyabhai Dhimar(Widow) vs State Of Gujarat on 21 August, 2019
Author: Biren Vaishnav
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1242/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1242 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 6817 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DAKSHABEN DAHYABHAI DHIMAR(WIDOW)
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with MS VIDHI J BHATT(6155)
for the Appellant(s) No. 1,2,3
MS NISHA THAKORE, ASST GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 3
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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C/LPA/1242/2019 JUDGMENT
Date : 21/08/2019
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. Challenging the correctness of the oral judgement dated 13.10.2017 passed by the learned Single Judge in Special Civil Application No. 6817 of 2008, the appellants have preferred this appeal under Clause 15 of the Letters Patent.
2. The question of law that arises for consideration of this Court is whether the appellants - heirs and legal representatives of the deceased employee (original petitioner before the learned Single Judge) shall be entitled to the benefit of family pension/gratuity on account of the fact that the Rules in force i.e. Bombay Civil Services Rules, 1959, at the time when the order of penalty of compulsory retirement (as substituted by the Tribunal) was passed, provided for payment of such benefits which otherwise were not available to an employee who had suffered the penalty of compulsory retirement on coming into force of the new pension rules i.e. Gujarat Civil Services (Pension) Rules, 2002.
3. Before adverting to the aforesaid question, we find it appropriate to refer to the facts and circumstances which led to the filing of the present appeal. The facts which are not in dispute and so considered by the learned Single Judge are as under:
"3. The petitioner came to be appointed as Clerk in panchayat service with Surat District Panchayat in December 1968. Subsequently, he was promoted as Senior Clerk and was working as such at Primary Health Centre at Village: Kanav. 3.1 After sometime he was transferred, however, he Page 2 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019 C/LPA/1242/2019 JUDGMENT made representation against the order of transfer which was not considered by the authority. 3.2 He has further claimed that the authority at the place where he was working, relieved him to enable him to report at the place of transfer with assurance that first he should report at the place of transfer and thereafter his request will be considered.
3.3 The petitioner had accepted that even after said liberty he did not report for the place of transfer. 3.4 In this background, a show cause notice was issued in June 1999 to the petitioner for his misconduct.
3.5 It appears that the petitioner had submitted his reply in response to the show cause notice, however, in December 1999 (i.e. after the notice was issued), the petitioner submitted an application seeking voluntary retirement with effect from 31.3.2000.
3.6 The said request (for voluntary retirement) was not accepted by the competent authority and in pursuance of the show cause notice, departmental enquiry was initiated.
3.7 During pendency of the enquiry, the petitioner was asked to resume his duties at transferred place.
3.8 Consequently, he resumed the duty at the transferred place.
3.9 Thereafter the petitioner repatriated to the panchayat service in June 2001.
3.10 The petitioner has claimed that subsequently, the petitioner came to be dismissed from service in pursuance of the departmental enquiry which was conducted in connection with the show cause notice which was issued in June 1999. 3.11 The appeal against the said order failed. 3.12 Therefore, the petitioner had approached the learned Gujarat Civil Services Tribunal. The said application / appeal was registered as Appeal No.183 of 2002. The learned Tribunal partly allowed the appeal by converting the order of dismissal into order of compulsory retirement. The relevant part of the order dated 7.10.2002 passed by the learned Tribunal reads thus:
The appeal is partly allowed and the Page 3 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019 C/LPA/1242/2019 JUDGMENT impugned order of penalty passed by respondent No.1 dismissing the appellant from service disqualifying him the future service of government and also the appellate order of respondent No.2 adjudicated such order of penalty are hereby quashed and set aside and modified to that penalty of compulsory retirement. The financial loss suffered by the appellant on account of implementation of the order be restored to him.
4. Thus, the learned Tribunal confirmed the findings and conclusions against the petitioner and also confirmed that the petitioner was guilty of misconduct. The learned Tribunal also held that the petitioner deserved to be visited with the order of penalty, however, the learned Tribunal modified the order of penalty passed by the State and instead, the learned Tribunal considered it appropriate to impose 'penalty' of 'compulsory retirement'.
5. Since the order of dismissal came to be set aside and came to be modified / substituted with the order of compulsory retirement, the petitioner demanded benefits viz. pension, gratuity etc. 5.1 The competent authority considered the petitioner's claim and accepted his request for pension, however, in light of the fact that the petitioner stood removed from service by way of compulsory retirement and thereby an order of penalty survived and operated against the petitioner, he was considered eligible for 'compassionate pension'.
5.2 The competent authority thereupon quantified compassionate pension and passed pension payment order.
5.3 Accordingly, the payment of compassionate pension commenced.
5.4 The authority did not consider the petitioner eligible for gratuity and any other benefit in view of the fact that the petitioner was removed from service on account of misconduct."
4. Mr. Shalin Mehta, learned Senior Advocate appears with Page 4 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019 C/LPA/1242/2019 JUDGMENT Ms. Vidhi Bhatt, learned advocate for the appellants. Mr. Mehta drew our attention to the following dates relevant for the purpose of consideration as to whether the appellants are entitled to gratuity and family pension. The dates are as under:
(a) The original order of dismissal was dated 08.08.2001.
(b) On a challenge before the Tribunal, the Tribunal on 07.10.2002 partly allowed the appeal directing the respondents to substitute the penalty of dismissal to compulsory retirement.
(c) The department substituted the order of dismissal by an order dated 03.02.2003 specifically holding that the deceased employee shall be treated to have been compulsorily retired under Rule 161 of the Bombay Civil Services Rules, 1959 (for short 'BCSR')with retrospective effect from 09.08.2001.
4.1 With respect to the above dates, it is submitted by Mr. Mehta that the order of penalty of compulsory retirement related back from 09.08.2001. The Rules in force were Rules 274 and 301 of the BCSR which provided that a government servant who is compulsorily retired from government service is eligible to get, with the sanction of the government, death- cum-retirement gratuity and family pension.
4.2 Mr. Mehta further submitted that the new pension rules Page 5 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019 C/LPA/1242/2019 JUDGMENT namely Rules 77 to 80 of the Gujarat Civil Services (Pension) Rules, 2002 (for short 'Pension Rules, 2002') came into force from 15.11.2002 i.e. after the order of penalty of compulsory retirement passed in the present case and therefore the disqualification of not being eligible for pension as provided under Rules 77(1) of the Pension Rules, 2002 would not apply in the facts of the case since the order of penalty relates back to 09.08.2001 prior to the Pension Rules, 2002 having come into effect on 15.11.2002. Mr. Mehta has drawn our attention to the relevant table which makes it evident that Rules 274 and 301 of the BCSR are corresponding to the new rules 78 and 79 of the Rules, 2002.
5. Ms. Nisha Thakore, learned Assistant Government Pleader has placed reliance on sub-rule (e) of Rule 192 of the Pension Rules, 2002 to submit that any action taken under the old rule shall be deemed to have been taken under the corresponding provisions of the new rule and therefore at best the original petitioner was entitled to compassionate pension under Rules 77 to 79 and that is what the learned Single Judge has done. She submitted that the learned Single Judge has appropriately remanded the case to the authorities for quantification of compassionate pension and held that the original petitioner is not entitled to family pension and gratuity.
6. What is evident from the chronology of factual events is that having succeeded before the Gujarat Civil Services Tribunal, which by a judgement and order dated 07.10.2002 directed the respondent employer to revise the penalty from dismissal to compulsory retirement, the District Development Page 6 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019 C/LPA/1242/2019 JUDGMENT Officer did so.
6.1 Reading the order of revising the penalty from that of dismissal and substituting it to compulsory retirement, would indicate that the deceased employee was compulsorily retired with retrospective effect i.e. from 09.08.2001. The order of compulsory retirement was passed in exercise of powers under Section 161 of the BCSR. The relevant date for consideration of the entitlement of the appellant for family pension and gratuity therefore is 09.08.2001.
7. It is an undisputed position of law that on 09.08.2001 the rules in force as far as pensionary benefits to such employees is concerned were, Rules 274 and 301 of the BCSR. The same are reproduced hereunder for ready reference:
" RULE 274 :
When a Government servant is removed or required to retire from Government service for misconduct or insolvency, or is removed or required to retire from Government service on grounds of Inefficiency before he is eligible for a retiring or superannuation pension. Government may if the case is considered deserving of special treatment, sanction the grant to him of a compassionate pension.
Note 1.-A dismissed Government servant is not eligible for compassionate pension.
Note 3.-Government servants who are removed or compulsory retired from Government service on the ground of inefficiency, insolvency or misconduct, and are granted by Government, compassionate pension under this rule, are eligible to get with the sanction of Government death-cum-retirement gratuity (which shall be subject to the limits prescribed for the amount of pension in the Bombay Civil Services Rule 301) and the Page 7 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019 C/LPA/1242/2019 JUDGMENT reduction of the amount of maximum gratuity admissible being made in the same proportion as is adopted in the case of pension. The grant of family pension should be regulated on the basis of compassionate pension in accordance with the provision in the Section IV of these rules.
RULE 301:
The amount of compassionate pension granted to a Government servant under Rule 274 shall be such as Government may fix in each case provided that -
(1) When a Government servant is removed from Government service for insolvency, inefficiency, or misconduct, it shall not exceed two-thirds of the invalid pension which would have been admissible to him had he retired on a medical certificate, and (2) When a Government servant is required to retire from service for insolvency, inefficiency, or misconduct, it shall not exceed the full invalid pension and special additional pension, if any, which would have been admissible to him on the date of his compulsory retirement, had he retired on a medical certificate."
8. The learned Single Judge, however, considering the prayers of the original petitioner considered the entitlement for the payment of gratuity and family pension in light of Rules 77 to 80 of the Gujarat Civil Services (Pension) Rules, 2002. The learned Single Judge has reproduced the rules which we may also do so and the same read as under:
"77. Grant of Compassionate Pension:
(1) A Government employee who is removed or required to retire from Government service for misconduct or insolvency shall be granted no pension other than a Compassionate Pension.
(2) A Government employee who is removed or Page 8 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019 C/LPA/1242/2019 JUDGMENT required to retire from Government service on the ground of inefficiency, shall, if he be eligible for a superannuation, or retiring pension, be granted such pension. If he is not eligible for a Retiring or Super pension he shall be granted no pension other than Compassionate pension.
78. Grant of Compassionate pension in deserving cases by Government:
(1) When a Government employee is removed or required to retire from Government service for misconduct or Insolvency or is removed or required to retire from Government service on grounds of inefficiency before he is eligible for a Retiring or Superannuation Pension, Government may, if the case is considered deserving of special treatment, sanction the grant to him of a Compassionate pension.
(2) A dismissed Government employee is not eligible for Compassionate Pension.
79. Amount of Compassionate Pension to be fixed by Government in each case:
The amount of Compassionate Pension granted to a Government employee under rule-78 shall be such as Government may fix in each case:
Provided that,
(a) When a Government employee is removed from Government service for insolvency, inefficiency or misconduct, it shall not exceed two-thirds of the in pension which would have been admissible to him had he retired on a medical certificate; and
(b) When a Government employee is required to retire from service for insolvency, inefficiency or misconduct, it shall be at a rate not less than two-
thirds of and not more than full invalid pension admissible to him on the date of his compulsory retirement, had he retired on medical certificate.
80. Amount of Service Gratuity/Pension:
Page 9 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019C/LPA/1242/2019 JUDGMENT (1) In the case of a Government employee retiring on Superannuation, Retiring, Invalid, Wound and Injury or Compensation Pension before completing qualifying service of ten years, the amount of service gratuity shall be one month's pay for each completed year of service.
(2) (a) In the case of a Government employee retiring on Superannuation, Retiring Invalid or Compensation accordance with the provisions of these rules after completing qualifying service of not less than thirty- three years, the amount of pension shall be fifty per cent of the pensionable pay subject to minimum amount of Rs.1913 and maximum amount of Rs.19500.
Provided that the full pension in no case shall be less than 50 percent of the minimum of the revised scale of pay introduced with effect from 1st January, 1996 for the post held by the employee at the time of retirement.
(b) In the case of a Government employee retiring on Superannuation, Retiring, Invalid or Compensation Pension in accordance with the provisions of these rules before completing qualifying service of thirty- three years but after completing qualifying service of the ten years, the amount of pension shall be proportionate to the amount of pension under clause
(a) and in no case the amount shall be less than minimum (3) In calculating the length of qualifying service, fraction of a year equal to six months and above shall be treated as a complete year and reckoned as qualifying service.
(4) The amount of pension finally determined under clause (a) or clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee."
9. What is to be noted is that though Rule 77(1) provides that a government employee if removed or is required to Page 10 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019 C/LPA/1242/2019 JUDGMENT retire from, government service for misconduct, shall be granted no pension, however, since these rules came into effect from 15.11.2002, i.e. subsequent to the order of penalty passed in case of the deceased employee, this rule was not applicable to the case of the employee. Obviously the corresponding rules to these amended rules were Rules 274 and 301 which we have quoted hereinabove which were applicable to the case of the deceased employee not only because they were in force when the order of penalty was passed but even the order of penalty was passed in exercise of powers under the same rules i.e. the Bombay Civil Services Rules. Therefore, the benefits had already accrued and crystallized in favour of the deceased petitioner and accordingly the appellants - heirs to seek the benefits of family pension and gratuity in view of the rules in force then i.e. Rules 274 and 301 of BCSR.
10. There is one more reason to hold so inasmuch as Chapter XX of the Pension Rules, 2002 has Rule 192 which reads as under:
"192. Repeal and Savings : (1) The Bombay Civil Services Rules, 1959 (as adapted by Government of Gujarat) so far as they relate to Pension are hereby repealed :
Provided that such repeal shall not affect the previous operation of the rules so repealed or anything done or any action taken there under.
(2) Notwithstanding such cease of operation -
(a) every form regarding the details of family of a Government employee for the purpose of Family Pension under GRFD No. FPS-1071-J, Dt. 1-1-72;
which a Government employee had made or given under the repealed rules or orders shall be deemed Page 11 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019 C/LPA/1242/2019 JUDGMENT to have been made or given under the corresponding provisions of these rules;
(b) the details regarding family of a Government employee for the purpose of Family Pension under the Scheme sanctioned vide GRFD No. FPS-1071-J, Dt. 1-1-72 required to be made or given by a Government employee under the repealed rules but not made or given before the commencement of these rules shall be made or given after such commencement in accordance with the provisions of these rules;
(c) any case which pertains to the authorisation of pension to a Government employee who had retired before the commencement of these rules and is pending before such commencement shall be disposed of in accordance with the provisions of the repealed rules as if these rules had not been made;
(d) any case which pertains to the authorisation of death-cum- retirement gratuity and Family Pension to the family of a deceased Government employee or of a deceased pensioner and is pending before the commencement of these rules shall be disposed of in accordance with the provisions of the repealed rules as if these rules had not been made;
(e) subject to the provisions of clauses (c) and (d), anything done or any action taken under the old rule shall be deemed to have been done or taken under the corresponding provisions of these rules."
[Emphasis Supplied]
11. Reading of the proviso of the Rule clearly indicates that the repeal of the Bombay Civil Services Rules 1959 shall not effect the previous operation of the rules so repealed or anything done or any action taken thereunder.
12. This obviously therefore saves the accrued right that has crystallized in favour of the heirs of the deceased employee and by virtue of this operation of the proviso also the appellant shall be entitled to be considered eligible to get with Page 12 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019 C/LPA/1242/2019 JUDGMENT the sanction of the government death-cum-retirement gratuity and family pension which shall be regulated on the basis of compassionate pension.
13. Accordingly, we allow this appeal and direct the respondents to consider the claim of the appellants and grant them death-cum-retirement gratuity and family pension which shall be regulated on the basis of compassionate pension as admissible in accordance with Rules 274 & 301 of the BCSR. The heirs of the deceased employee shall be paid such benefits within a period of four weeks from the date of writ of the order of this Court. The impugned judgement dated 13.10.2017 is modified accordingly. No costs.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) DIVYA Page 13 of 13 Downloaded on : Fri Aug 23 21:16:00 IST 2019