Bombay High Court
Sardar Khan vs Assistant Security Commissioner ... on 11 August, 1993
Equivalent citations: (1994)IILLJ163BOM
JUDGMENT Naik, J.
1. A short question that arises in this petition is whether the petitioner will be treated to be in continuous service between July 10, 1969 to September 2, 1969 for the purpose of pensionery benefits. The petitioner was Ex-Railway Protection Force Rakshak with Badge No. 263. He joined the Railway Protection Force as Rakshak on June 22, 1945. He had, throughout, unblemish record of service. His son, who was hardly 18 years of age, expired on December 8, 1968, which affected his wife's health and this, in turn, caused mental tension and shock to the petitioner and under these circumstances, without realising the consequences, the petitioner tendered his resignation to Respondent No. 1 on June 10, 1969. It is important to note that when he tendered this resignation, petitioner had already completed more than 24 years of service. This resignation was accepted by the Respondent No. 1 on July 9, 1969 with effect from July 10, 1969 and the letter of acceptance of the resignation clearly mentions that the resignation is accepted with effect from July 10, 1969 on the grounds accepted as good and sufficient from the administrative point of view.
2. Having realised the mistake committed by the petitioner, he made a representation to Respondent No. 2 for his reinstatement immediately. Being satisfied with the request made. Respondent No. 2 by his order dated June 16, 1969, signed on August 18, 1969, accorded his sanction for enlistment of the petitioner as a fresh entrant with immediate effect. The letter of appointment mentioned that the petitioner will not get any benefits of his previous service. In pursuance of the appointment order, the petitioner resumed duty on September 3, 1969. Thereafter, the petitioner went on making representations since October 18, 1969 to the Respondent No. 2 for condoning the break in service for the period from July 12, 1969 to September 2, 1969 and to adjust the said period against the leave due to him. The petitioner has annexed to this petition the various correspondence and the representations which he made with the Respondent No. 2 However, the petitioner superannuated on June 22, 1978, after putting in about 24 years of service with the Railway Protection Force as Rakshak. The petitioner did not get his retirement dues such as gratuity, his share of contribution to the Provident Fund and Pension. However, it is interesting to note that when the petitioner was issued discharge certificate, it is shown that the reason for leaving the service in Railway Protection Force is attaining superannuation or completion of 58 years of age.
3. Since the petitioner did not receive any response to his representation, he sent Mercy Appeal on August 31, 1987 to the then Minister of Railways for the payment of pension and other retirement benefits to the petitioner from the date of superannuation on June 22, 1978. He went on making correspondence with the Respondents and again sent ultimate Mercy Appeal on June 24, 1991 addressed to the President of India, New Delhi. Since nothing was done in the matter, he was compelled to approach this Court under Article 226 of the Constitution of India with prayers that he should be paid pension retrospectively from July 1978, that he should be paid also his gratuity and his share of contribution in the Provident Fund.
4. This petition came up for admission before the Division Bench of this Court (K. Sukumaran and Dr. B.P. Saraf, JJ.) The Division Bench while admitting the matter observed as follows;-
"The facts are peculiar and call for a strongly sympathetic consideration at the hands of the Railway Board. We do trust that the grievances of the petitioner would be duly taken serious note of by the Board. The decision taken by the Board shall be communicated to the petitioner and a copy of the same made available to this Court before the next date of hearing."
5. When this matter reached for final hearing before this Bench, the order passed by the Director General (R.P.F.) was produced, which is taken on record. All that the order mentions is that the petitioner was appointed on June 22, 1945 as Rakshak. He resigned from service with effect from July 10, 1969 and since a request was made by the petitioner, he was reappointed as a fresh entrant with effect from September 3, 1969 with a condition that he will not get any benefits of his previous service. The order further mentions that he superannuated on June 30, 1978 and after attaining the age of 58 years, he was paid all settlement dues. Surprisingly, notwithstanding the correspondence and the representations, it is observed in the order that during the period from 1969 to 1978, it does not appear as if he had sought for condonation of break in service. Since this order was only produced in the Court and no affidavit in reply was filed, we directed the Respondents to file affidavit-in-reply. In spite of the fact that the time was granted, no affidavit-in-reply was filed on August 6, 1993 and finally on August 10, 1993, when this matter reached for final hearing, affidavit-in-reply is filed by the Respondents. In the affidavit-in-reply all that they point out is that the petitioner's fresh appointment letter was very clear and the fresh appointment order was issued with a condition that he will not get any benefits of his previous service and hence, it is not open for the petitioner to ask for such benefits. In effect, the affidavit-in-reply tried to support the order passed by the Director General (R.P.F.) on February 5, 1992.
6. Admittedly, fresh order of appointment was issued in favour of the petitioner when he was overaged, by relaxing the condition relating to age. Since the condition of age was relaxed in favour of the petitioner, we asked the Respondents' Counsel as to why they should not condone the break in service. To this there was hardly any reply. In fact, the orderof the Director General (R.P.F.) proceeds on the basis that no representation was made for condoning the break in service and we do find that the Respondents have ample power to condone such break in service and they have such a power under the Rules of Manual of Railway Pension Rules, 1950, particularly Rule 47(iii).
7. Shri Nathan, learned counsel appearing for the petitioner, brought to our notice judgment of the Supreme Court in Civil Appeal No. 3479 of 1991 arising out of Special Leave Petition (C) No. 4833 of 1991. In this matter notice was issued on the Special Leave Petition confined to the question as to whether the petitioner would be treated to be in continuous service between 1965 and 1968 for the purpose of pension only. This was the case where the appellant before the Supreme Court was removed from the service following a disciplinary action in 1965 and on a representation made by him, he was called back to work in 1968 and superannuated in 1987. The break in service affected his pension. The Supreme Court observed that whatever may be the reason for his re-employment, Respondents, obviously condoned the lapses in calling him back to duty and it is a usual relief available in these circumstances to give continuity of service for purposes of pension. The facts are similar in this case or they stand on a better footing. It is not in dispute that the respondents condoned the lapses on the part of the petitioner by giving him fresh appointment and, as the Supreme Court observed, it is a usual relief available in these circumstances to give continuity of service for the purposes of pension, more so, when there is power, we find that this is a hard case where petitioner will have to be granted the relief which he has asked for.
8. Hence, we accordingly grant relief to the petitioner with regard to the continuity in service between July 10, 1969 to September 2, 1969 for the purposes of pensionary and other benefits which are claimed by the petitioner. Rule made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.