Gujarat High Court
Madhusudan D. Sheth vs State Of Gujarat & 2 on 1 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/16358/2004 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16358 of 2004
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MADHUSUDAN D. SHETH....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR. D. P. KINARIWALA, ADVOCATE for the Petitioner(s) No. 1
MR KM ANTANI, AGP for the Respondent(s) No. 1 - 2
MR PRANAV G DESAI, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/04/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, a retired employee of the Vadodara Municipal Corporation, has prayed for the following reliefs :
"(A) Be pleased to allow this petition.
(B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to grant the pensionary benefits accrued to him by virtue of his retirement with the respondent no.3 Corporation dated 24.3.1992.
(C) Be pleased to grant any other relief which deems fit in the interest of justice."
The facts of this case may be summarised as under :
The petitioner was initially appointed with the respondent Page 1 of 6 HC-NIC Page 1 of 6 Created On Tue Apr 05 02:02:59 IST 2016 C/SCA/16358/2004 ORDER no.3 Corporation in the office of the Town Planning Officer, Town Planning Scheme, Vadodara, as a daily wager on 25th June 1973. His services continued till March 1977. On 5th March 1979 he was appointed as a Helper and worked upto 23 rd April 1992. His case is that he is entitled to pension.
On behalf of the Corporation, an affidavit-in-reply has been filed, inter alia, stating as under :
"6) With reference to para 4.1 of the petition, I do not admit the contents thereof and the Petitioner is put to strict proof thereof. I do not admit that the Petitioner had worked with the Respondent no. 3 corporation in the office of Town Planning Officer, TPS as a daily wager on 25.6.1973 and that the service continued till March, 1977 and therefore from 25.6.73 to 31.3.77 in the year 1973 he had worked for 151 days and for the year 1974 is concerned, he had worked for 310 days and for the year 1975 is concerned he had worked for 309 days and for the 1976 is concerned he had worked for 309 days and for the year 1977 is concerned, he had worked for 75 days as alleged or otherwise. I crave leave to refer to and rely upon the certificate issued by the Town Planning Officer, Vadodara to the Petitioner for its true meaning and effect at the time of hearing.
7) With reference to para 4.2 of the petition, I do not admit that the present petitioner was again taken on 5.3.1979 as a helper and he worked upto 23.4.1992 as alleged or otherwise, and the petitioner is put to strict proof thereof. I say that the petitioner was superannuated on 28.2.90, but due to mistake on the part of the concerned department of the Respondent Corporation necessary order retiring the Petitioner has not been issued and the service of the Petitioner was continued upto 23.4.1992. Therefore, the then Municipal Commissioner of the Respondent no. 3 Corporation passed an order contending that the period of 1.3.90 to 23.4.92 is to be considered as reappointment on temporary basis and also directed to take action against the concerned officer who had to issue the retirement order to the Petitioner. A copy of the said order is Page 2 of 6 HC-NIC Page 2 of 6 Created On Tue Apr 05 02:02:59 IST 2016 C/SCA/16358/2004 ORDER enclosed herewith as Annexure-I. I say that the petitioner has also preferred Industrial Dispute before the Industrial Tribunal, Vadodara being Ref. (IT) No.557/1984 wherein term of reference was as to whether the Petitioner should be made permanent after considering 240 days service with the Respondent Corporation and the amount of difference is required to be paid by the Respondent Corporation or not. I say that the said reference was rejected by the Industrial Tribunal on 26.7.1994 observing that the petitioner can not avail the benefit of Ref. No.108/1973 and as per the said award the petitioner who had completed 720 days continuous service in the Corporation will be appointed as permanent employee after completing 720 days. The Petitioner herein can not claim benefit of that award looking to the facts and circumstances of the case of the petitioner. It was also observed by the learned Tribunal that effective appointment to the petitioner was given on 21.11.81 and therefore the service of the petitioner should be counted from the said date. After going to the facts and circumstances of the case, the learned Tribunal has rejected the reference made by the petitioner. I crave leave to refer to the order passed by the Industrial in Ref. (IT) No. 557/84 dated 26.7.94 which is enclosed herewith as Annexure-II hereto.
8) With reference to para 4.3 of the petition I say that considering the facts and circumstances of the case as well as considering the services of the Petitioner from 21.11.81 and the date of superannuation of the petitioner on 28.2.90, the Petitioner has not completed his 10 years of services with the respondent Corporation and as per the BCSR Rules and the order passed by the then Municipal Commissioner of the respondent Corporation dated 3.3.90, the Petitioner is not entitled for pension. I say that in the Ref. (IT) No. 557/1984 the petitioner has specifically clarified that the award of the Industrial Tribunal wherein the petitioner who had completed 720 days with the respondent should be made permanent and as such the said benefit can not be given to the petitioner herein and pensionable service of the petitioner is accounted from 21.11.81 the petitioner is not entitled for any pension. I deny that the Petitioner is having wife and son and residing separately and there is none in the family as alleged or otherwise. I deny that Page 3 of 6 HC-NIC Page 3 of 6 Created On Tue Apr 05 02:02:59 IST 2016 C/SCA/16358/2004 ORDER similarly situated petitioners like the petitioners had been given benefit of the pension from the Petitioner as alleged or otherwise and the petitioner is put to strict proof thereof. I crave leave to refer to and rely upon the correspondence made between the parties at the time of hearing.
9) With reference to para 4.4 of the petition the respondent Corporation has already replied to the letter of the Petitioner, more specifically on 6.8.98 and 1.9.98 and in the facts and circumstances of the case and looking to the service rendered by the Petitioner with the respondent Corporation from 21.11.81 to 28.2.2000 as well as the BCSR Rules, the Petitioner is not entitled for any pensionary benefits from the respondent Corporation. I crave leave to refer to and rely upon the said letter addressed by the respondent Corporation to the petitioner at the time of hearing. I crave leave to refer to and rely upon the resolution of the respondent Corporation dated 30.1.90 for its true meaning and effect at the time of hearing. I have submitted herein above that in view of the facts and circumstances of the case, the Petitioner is not entitled for any pension and therefore the petitioner has not been given the benefit of pension. I say that as per the rules and regulations of the respondent Corporation the petitioner had been given gratuity amount which is duly accepted by the petitioner herein above. Rest of the contentions and allegations are denied by the applicant herein.
12) With reference to ground (B) of the petition, I have already submitted herein above that the petitioner had filed Reference before the Industrial Tribunal, Vadodara being Ref (IT) No. 557/84 for confirmation and appropriate pay scale on completion of 240 days service with the respondent Corporation which was rejected by the learned Industrial Tribunal. I say that the petitioner was reinstated in the service of the respondent Corporation from 1.10.81 and the pensionary benefits accrued from the said date and the petitioner is superannuated on 28.2.90. I say that the said service is not fulfilling the criteria as per BCSR Rules for pensionary benefits and therefore the petitioner has not been given pensionary benefits. I deny that the Petitioner had worked for more than 18 years with the respondent Page 4 of 6 HC-NIC Page 4 of 6 Created On Tue Apr 05 02:02:59 IST 2016 C/SCA/16358/2004 ORDER Corporation as alleged or otherwise. Rest of the contentions and allegations are denied by me hereby.
13) With reference to ground (C) of the petition, I reiterate that the service of the petitioner is even of not 10 years with the respondent Corporation and therefore the petitioner is not required to be given pension as per BCSR Rules. I deny that the present petitioner has service of more than 18 years as alleged or otherwise.
14) With reference to ground (D) I deny that as per resolution passed on 30.1.90 by the respondent Corporation if any worker had worked as daily wager basis for more than 10 years then his service period will be considered for pensionary benefits as alleged or otherwise. I crave leave to refer to and rely upon the said resolution for its true meaning and effect at the time of hearing. I deny that the respondent Corporation is acting against its own resolution as alleged or otherwise.
19) With reference to para 7 of the petition, I reiterate that the Petitioner was superannuated on 28.2.90 and the service rendered by the Petitioner from 1.3.90 to 23.4.92 was considered by the respondent Corporation as reappointment on temporary basis and therefore the contention of the petitioner to consider his service as continuous is illegal and untenable and required to be rejected. I deny that the petitioner is entitled for pension as per the provisions of law as alleged or otherwise. I deny that the petitioner has not been given benefit of pension on illegal and untenable ground as alleged or otherwise. I deny that the present petitioner has been deprived of very valuable rights of having pension as alleged or otherwise. Rest of the contentions and allegations are denied by the applicant hereby."
Thus, it appears from the stance of the Corporation that the petitioner was superannuated on 28th February 1990. The services rendered by him from 1st March 1990 to 24th February 1992 was considered as reappointment on temporary basis and cannot be clubbed, i.e. earlier service, for the purpose of Page 5 of 6 HC-NIC Page 5 of 6 Created On Tue Apr 05 02:02:59 IST 2016 C/SCA/16358/2004 ORDER pension. It is not in dispute that the amount towards the gratuity was paid and accepted by the petitioner. In the overall view of the matter, no case is made out for grant of pension.
I take notice of the fact that the petitioner attained superannuation in 1990. Thereafter, he was appointed for two more years on temporary basis. He served last upto 1992. This petition came to be filed in the year 2004, i.e. almost after a period of 12 years, and is being heard and disposed of exactly after 12 years.
In my view, no case is made out for exercise of my equitable jurisdiction under Article 226 of the Constitution of India. This application, therefore, fails and is hereby rejected.
(J.B.PARDIWALA, J.) MOIN Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Apr 05 02:02:59 IST 2016