Pushpaben Sureshbhai Pathak vs District Development Officer on 23 March, 2018

[Cites 2, Cited by 0]

Gujarat High Court

Pushpaben Sureshbhai Pathak vs District Development Officer on 23 March, 2018

Bench: K.M.Thaker

        C/SCA/20597/2015                                    ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 20597 of 2015

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                    PUSHPABEN SURESHBHAI PATHAK
                                Versus
                    DISTRICT DEVELOPMENT OFFICER
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Appearance:
MR SANDEEP R LIMBANI(5977) for the PETITIONER(s) No. 1,2,3,4
DELETED(20) for the RESPONDENT(s) No. 3
MR. D.M.DEVNANI, AGP for the RESPONDENT(s) No. 2
MR HS MUNSHAW(495) for the RESPONDENT(s) No. 1
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 CORAM: HONOURABLE MR.JUSTICE K.M.THAKER

                            Date : 23/03/2018

                             ORAL ORDER

1. Heard learned advocate for the petitioner and Mr. Devnani, learned AGP.

2. In present petition, the petitioner has prayed, inter alia, that:

"21(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, holding and declaring that the father fo the petitioners is entitled to get regular pension and gratuity etc., and thereby be pleased to direct the respondents to pay regular pension in the case of father of the petitioners from the date of compulsory retirement and direct them to pay the gratuity, provident fund, and leave encashment and other benefits together with interest @ 18% per annum.

(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to pay regular pension in the case of father of the petitioners from the date of compulsory retirement and direct them to Page 1 of 29 C/SCA/20597/2015 ORDER pay the gratuity, provident fund, and leave encashment and other benefits together with interest @ 18% per annum."

3. The petitioners are heirs/ legal representatives of the deceased employee (Mr. S.H.Pathak) who was an employee in the office of the District Development Office (respondent No.1).

3.1 The said deceased employee had, in 2006, filed petition (SCA No.20315/2006) wherein he raised grievance against the respondent's decision/ action namely not sanctioning/ not granting regular pension. This fact is recorded in Para2 of the order dated 22.09.2006. Relevant part of the order reads thus:

"Learned Advocate, Mr. Paul, relied upon the Rule 186 of the BCS Rules and submitted that petitioner is entitled to regular pension from the respondent which has been wrongly denied on the basis of misinterpreting the Rule 186 of the BCS Rules".

3.2 The said petition (i.e. SCA No.20315/2006) came to be disposed of vide order dated 22.09.2006 whereby the Court permitted the Page 2 of 29 C/SCA/20597/2015 ORDER petitioner to submit representation to the competent authority. The Para3 of said order reads thus:

"In view of these facts, it is directed to the respondents to examine the grievance of the petitioner and consider the case of the petitioner for regular pension/ other benefits which has been mentioned in the notice under Rule 186 of the BCS Rules and pass appropriate reasoned order in accordance with law within a period of 2 months from the date of receiving the copy of the order."

3.3 Subsequently, the concerned employee submitted representation dated 31.10.2006. It is alleged that the competent authority rejected the said representation vide its order dated 22.11.2006. Thereafter, the concerned employee filed another petition (SCA No.3595/2007) wherein concerned employee prayed, inter alia, that "7(B) This Honourable Court may be pleased to issue writ of mandamus or any other writ or order or direction by directing the respondents to pay regular pension to the petitioner from the date of compulsory retirement and further to pay an amount of provident fund, leave encashment and other benefits with 18% interest." 3.4 It is pertinent to note that the petitioner claimed "regular pension" (not compassionate pension) in SCA No.3595/2007.

Page 3 of 29 C/SCA/20597/2015 ORDER 3.5 The said petition came to be disposed of vide order dated 7.8.2014. Relevant part of said order dated 7.8.2014 reads thus:

"4. Learned counsel for the petitioner has taken this Court through various documents including the order of punishment dated 21st November, 1997 and representation made by him to respondent no.2 on 27th December 2004, 14th February 2005 for regular pension and ultimately legal notice dated 26th May 2005 as also the order passed in SCA 20315 of 2006 and the representation dated 31st October 2006 after the said order and letter dated 22 nd November 2006 by respondent no.1 rejecting the petitioner's representation would contend that in absence of the statement in the order of compulsory retirement (Annexure A) depriving the petitioner of regular pension, his compulsory retirement is under Rule 161 and not under 186(a) of the Bombay Civil Services Rules (for short "BCSR") and thus, denial of the pension to the petitioner is illegal. He would thus, urge this Court to issue the required writ or direction.

"5. As against that the learned AGP as also learned counsel for respondent no. 1 the District Development Officer would contend that as a measure of punishment for unauthorised long leave of 1200 and odd days, the petitioner was compulsorily retired after following required procedure in accordance with the rules and in absence of the challenge to the order of compulsory retirement the petitioner is not entitled to the pension. It was contended that in pursuance to the order passed by this Court in the aforementioned Special Civil Application the petitioner's case was being considered for compassionate pension. Learned AGP as also learned counsel for the respondent no. 1 would distinguish Jivraj Vashrambhai Kanjari Vs. State of Gujarat (2005(7) GLR 681 relied upon by learned counsel for the petitioner with a contention that unlike the present case, the said case was not dealing with the compulsory retirement by way of punishment but merely a question of delayed pension was raised before the Court and therefore, was not applicable to this case.

6. Having considered the rival contentions along with the documents placed on record, it appears that the fact that the petitioner was compulsorily retired by way of punishment cannot be disputed in view of the unchallenged order dated 21st November 1997 produced at Annexure A to the petition. The order clearly commands the petitioners compulsory retirement on establishment of four charges against him. Rule 186(a) of the BCSR clearly disqualifies a Government servant removed or required to retire from Government service for misconduct or insolvency, of the Page 4 of 29 C/SCA/20597/2015 ORDER pension other than a compassionate pension. Thus, the argument made by learned counsel for the petitioner that in absence of the statement in the order itself denying the pension, it must be construed as the one passed under 161 of the BCSR is meritless. That apart it is rightly argued that in absence of successful challenge to the order for compulsory retirement at Annexure A the petitioner would not be entitled to the pension under Rule 161 of the BCSR rules.

7. It appears from the record of the petition particularly the communication dated 12th December 2006 that despite requiring the petitioner to submit necessary papers for processing his case for compassionate pension no documents came to be produced before the concerned authority neither any application was made by him for compassionate pension.

8. For the foregoing reasons no substance is found in the petition. It is therefore, ordered to be dismissed. It will be however, open for the petitioner to make appropriate application for compassionate pension which shall be decided by the respondent in accordance with law. The petitioner may rely upon the previous communication made by him to the respondents.

9. However, though not prayed for but learned counsel for the petitioner orally contended that even other benefits like gratuity and provident fund are not paid to the petitioner. If that is the case the respondent no. 1 will consider the case of the petitioner and if any benefits except the pension is payable to him, will make such payment with interest @ 9% p.a within a period of three months from the date of receipt of the writ of this Court. It is made clear that if the loan or any amount is outstanding against the petitioner, that may be recovered while making aforesaid exercise with interest as may be applicable to the transaction in accordance with the rules."

3.6. Thereafter, the respondents, having regard to the order dated 7.8.2014, considered the case of said employee as a special case and sanctioned gratuity ( in light of the observation by High Court). The respondent also paid gratuity vide order dated 2.5.2015.

Page 5 of 29 C/SCA/20597/2015 ORDER 3.7 However the respondents did not accept the demand by the said employee for pension in view of the fact and on the ground that the petitioner's service came to be terminated by way of compulsory retirement, in accordance with Rule 186 of BCSR which disqualified the petitioner for pension.

3.8 It is pertinent that the legality of the decision dated 22.11.2006 came to be considered by the Court in above SCA No.3595/2007 which was filed by the concerned Court and this Court in the decision dated 7.8.2014, approved the said decision dated 22.11.2006. Nonetheless, this Court permitted the petitioner to approach the respondent with a request to make representation to consider the case for compassionate pension. 3.9 The petitioners (i.e. legal heirs/ legal representatives of the concerned employee) have, on strength of the said observation, taken out this (3rd) petition to seek above quoted relief. Page 6 of 29 C/SCA/20597/2015 ORDER

4. From the relief prayed for by the petitioner it comes out that the petitioners have prayed for direction against the respondents to pay gratuity. To support the said demand the petitioners have averred and alleged that:

"(I) The respondents were fully aware of the fact that the father of the petitioner is entitled to regular pension and gratuity etc., and therefore deliberately they have not released the same at the time of compulsory retirement of the father of the petitioners."

4.1 The petitioners have not stated that the respondent have considered the case of the deceased employee as special case and though in light of applicable Rules the deceased employee would not be eligible for gratuity, paid gratuity vide order dated 2.5.2015. It is also not the claim/ case of the petitioners that the computation of gratuity is erroneous and not according to applicable Rules.

5. At this stage, it is necessary to take into account the factual background which would demonstrate that the petition is abuse of process of law or atleast this is avoidable round of Page 7 of 29 C/SCA/20597/2015 ORDER litigation and the relief(s) prayed for by the petitioners are not maintainable and do not deserve to be granted.

6. As mentioned above, the husband of the petitioner No.1/ father of petitioner nos. 2 to 4 ( i.e. concerned employee Mr. S.H.Pathak) was an employee with respondent no.1.

6.1 His service came to be discontinued by way of compulsory retirement vide order dated 2.11.1997. 6.2 It is pertinent that the concerned employee never challenged the said order dated 2.11.1997 whereby his service came to be terminated by way of compulsory retirement. He accepted the said order. Consequently, the order dated 2.11.1997 attained finality.

6.3 The concerned employee attained 58 years of age (age for superannuation in ordinary course) in November, 1997.

6.4 It is pertinent to note that from the date of compulsory retirement until 2006 i.e. for almost 9 years, the petitioners did not raise any Page 8 of 29 C/SCA/20597/2015 ORDER dispute with regard to alleged nonpayment of gratuity or even to demand pension.

7. It was for the first time in 2006 that the petitioner filed a petition (SCA No.20315/2006) with demand that the respondents should pay him regular pension and that his termination should be considered under Rule 161 and not Rule 186.

8. Instead of entertaining the said petition on merits, this Court, vide order dated 22.9.2006 disposed of the petition by permitting the petitioner to submit a representation.

9. The important fact in this count is that from 1999 to 2006, the concerned employee never raised any demand for regular pension or even compassionate pension and it was for first time that the concerned employee came forward for pension in 2006.

Page 9 of 29 C/SCA/20597/2015 ORDER

10. Subsequently, the petitioner filed another SCA No.3595/2007. In the said petition, as mentioned above, the petitioner prayed for direction against the respondents that they should pay regular pension from the date of compulsory retirement and the respondents should also pay Provident Fund, leave encashment and other benefits, with 18% interest.

11. Meaning thereby, the relief prayed for in present petition are similar to relief which the concerned employee prayed for in 2007 i.e. SCA No.3595/2007. The Court considered the said demand. In para2 to 4 of the order dated 7.8.2014 the Court recapitulated the factual background and the petitioners contention. The said Para2 to 4 read thus:

"2. In the year 1965 the petitioner joined the service with the respondent no.1 as a Pharmacist and on 31 st November 1997 he was set to superannuate but on 21 st November 1997 i.e. 9 days before superannuation he came to be compulsorily retired. The petitioner expected regular pension from the date of his compulsory retirement and that having not been paid to him the petition is instituted with a prayer as above.

3. The respondents were served but none of them have preferred to controvert factual aspects stated by the petitioner in this petition.

Page 10 of 29 C/SCA/20597/2015 ORDER

4. Learned counsel for the petitioner has taken this Court through various documents including the order of punishment dated 21st November 1997 and representation made by him to respondent no.2 on 27th December, 2004, 14th February 2005 for regular pension and ultimately legal notice dated 26th May 2005 as also the order passed in SCA 20315 of 2006 and the representation dated 31st October 2006 after the said order and letter dated 22nd November 2006 by respondent no.1 rejecting the petitioner's representation and would contend that in absence of the statement in the order of compulsory retirement (Annexure A) depriving the petitioner of regular pension, his compulsory retirement is under Rule 161 and not under 186(a) of the Bombay Civil Service Rules (for short "BCSR") and thus, denial of the pension to the petitioner is illegal. He would thus, urge this Court to issue the required writ or direction."

12. The objection by the respondents are recorded in Para5 of the said order, which reads thus:

"5. As against that the learned AGP as also learned counsel for respondent no. 1 the District Development Officer would contend that as a measure of punishment for unauthorised long leave of 1200 and odd days, the petitioner was compulsorily retired after following required procedure in accordance with the rules and in absence of the challenge to the order of compulsory retirement the petitioner is not entitled to the pension. It was contended that in pursuance to the order passed by this Court in the aforementioned Special Civil Application the petitioner's case was being considered for compassionate pension. Learned AGP as also learned counsel for the respondent no. 1 would distinguish Jivraj Vashrambhai Kanjari Vs. State of Gujarat (2005(7) GLR 681 relied upon by learned counsel for the petitioner with a contention that unlike the present case, the said case was not dealing with the compulsory retirement by way of punishment but merely a question of delayed pension was raised before the Court and therefore, was not applicable to this case."

13. For present purpose, the relevant observation are found in Para Nos. 6 and 7 of the said order dated 7.8.2014. The said paras read thus: Page 11 of 29 C/SCA/20597/2015 ORDER

"6. Having considered the rival contentions along with the documents placed on record, it appears that the fact that the petitioner was compulsorily retired by way of punishment cannot be disputed in view of the unchallenged order dated 21st November 1997 produced at Annexure A to the petition. The order clearly commands the petitioners compulsory retirement on establishment of four charges against him. Rule 186(a)of the BCSR clearly disqualifies a Government servant removed or required to retire from Government service for misconduct or insolvency, of the pension other than a compassionate pension. Thus, the argument made by learned counsel for the petitioner that in absence of the statement in the order itself denying the pension, it must be construed as the one passed under 161 of the BCSR is meritless. That apart it is rightly argued that in absence of successful challenge to the order for compulsory retirement at Annexure A the petitioner would not be entitled to the pension under Rule 161 of the BCSR rules.

7. It appears from the record of the petition particularly the communication dated 12th December 2006 that despite requiring the petitioner to submit necessary papers for processing his case for compassionate pension no documents came to be produced before the concerned authority neither any application was made by him for compassionate pension". (emphasis supplied0

14. From above quoted observation, it can be seen that the Court held and concluded that "the order clearly commands the petitioners compulsory retirement on establishment of four charges against him. Rule 186(a) of the BCSR clearly clearly disqualifies a Government servant removed or required to retire from Government service for misconduct or insolvency, of the pension other than a compassionate pension."

Page 12 of 29 C/SCA/20597/2015 ORDER

15. Amongst the said observation crucial and relevant expression are "clearly commands" and the expression "on establishment of four charges"

and the words "compulsory retirement".

16. The Court noticed that the petitioner was terminated in view of proved misconduct and that four charges of misconduct were proved/ established against said employee and in that view of the matter the petitioner came to be compulsory retired and that his compulsory retirement was governed by provision under Rule 186(a) of BCSR.

17. The Court rejected the claim of the employee that the compulsory retirement should be considered as retirement under Rule 161. The Court rejected the said submission as "meritless."

18. The said petition was filed by the concerned employee himself. The said order dated 7.8.2014 has attained finality.

Page 13 of 29 C/SCA/20597/2015 ORDER

19. Despite this fact, now the heirs/ legal representatives of the deceased employee have taken out this petition.

20. Before proceeding further, it is relevant to note that the Court, while disposing the petition (SCA No.3595/2007) vide order dated 7.8.2014, took into account the words under Rule 186(a) i.e. ".....he shall be granted no benefit other than compassionate pension."

21. Having regard to the said expression under Rule 186(a) the Court recorded below quoted observation in the order dated 7.8.2014:

"8. For the foregoing reasons no substance is found in the petition. It is therefore, ordered to be dismissed. It will be however, open for the petitioner to make appropriate application for compassionate pension which shall be decided by the respondent in accordance with law. The petitioner may rely upon the previous communication made by him to the respondents."

22. On this count, what is pertinent to note is that the Court observed that the employee had Page 14 of 29 C/SCA/20597/2015 ORDER approached the respondent for "compassionate pension".

23. However, in present petition, the heirs/ legal representatives of the deceased employee have not approached the Court with claim for "compassionate pension" and/ or have not approached the Court against the respondent's decision of not sanctioning and granting "compassionate pension" but the heirs/ legal representatives of the deceased employee have approached the Court with demand for "regular pension."

24. The heirs/ legal representatives of the deceased employee have prayed for direction against the respondents "to pay 'regular pension' in case of father of the petitioners from the date of compulsory retirement and direct them to pay gratuity, Provident Fund, and leave encashment, and other benefits together with interest @18% per annum."

25. At this stage it is necessary to mention that in the order dated 7.8.2014 this Court has Page 15 of 29 C/SCA/20597/2015 ORDER already as back as on 7.8.2014 categorically rejected the demand of the concerned employee for "regular pension" as meritless.

26. In Para6 of the order dated 7.8.2014 the Court has categorically recorded that since the service of the concerned employee came to be terminated by way of compulsory retirement on account of proved and established misconduct/ (charges, the termination would be governed under Rule 186(a) and that therefore, the concerned employee is not eligible for regular pension and such claim is "meritless".

27. As mentioned above, the said order has attained finality.

28. When this Court, after examining very same demand, not only rejected the claim on merits and categorised it as " meritless" and after the said verdict attained finality and when almost 4 years have passed thereafter, the petitioners (heirs/ Page 16 of 29 C/SCA/20597/2015 ORDER legal representative of the employee who himself had filed said petition) have taken out this petition.

Once the demand is considered on merits and has been rejected by coordinate bench, this Court cannot entertain such claim. It would amount to sitting in appeal.

29. Despite this fact, the heirs/ legal representatives of present petition have again taken out this petition and prayed for "regular pension."

30. Therefore, this Court is constrained to observe that this petition is sheer abuse of the process of law by the heirs/ legal representatives of the deceased employee.

31. At this stage, it is necessary to mention that before the Court passed order dated 7.8.2014 in SCA No.3595 of 2007, the concerned employee died in 2007.

Page 17 of 29 C/SCA/20597/2015 ORDER

32. It appears that after the Order dated 7.8.2014, the heirs/ legal representatives of the employee submitted an Application dated 15.9.2014 for compassionate pension, gratuity, Provident Fund, leave encashment, etc.

33. The respondent State and the District Panchayat conveyed their decision dated 18.3.2105 and 27.3.2015 respectively.

34. At this stage, it is also necessary to mention that the petitioners (i.e. heirs/ legal representatives of the deceased employee) have accepted the said decision dated 18.3.2015 and 27.3.2015 inasmuch as during past 3 years i.e. from March, 2015 until now the said decision dated 18.3.2015 and 27.3.2015 are not challenged by the petitioners.

35. Even in this petition, the said decision/ orders or communication dated 18.3.2015 and 27.3.2015, are not challenged.

Page 18 of 29 C/SCA/20597/2015 ORDER

36. Meaning thereby the decision of the competent authority rejecting the claim for "compassionate pension" is not disputed and not challenged by the petitioners. It is relevant to note that when the concerned employee filed the petition (SCA No.3595/2007) he specifically and expressly prayed for "regular pension". Likewise, in present petition, the heirs/ legal representatives of the deceased employee i.e. present petitioners have also prayed for "regular pension" and not compassionate pension. The said facts, when considered cumulatively make it clear that neither the employee demanded compassionate pension in the petition which he filed (i.e. SCA No.3595/2007 nor present petitioners (in present petition) have prayed for compassionate pension.

37. This Court vide order dated 7.8.2014 observed that the petitioners may approach the competent authority for "compassionate pension". The authority considered the said claim and rejected the demand for compassionate pension. As Page 19 of 29 C/SCA/20597/2015 ORDER mentioned above, the heirs/ legal representatives never challenged the said decision. Even in present petition, the said decision is not challenged. Therefore, the claim for compassionate pension does not survive after the order dated 18.3.2015 and 27.3.2015.

38. The said aspect, therefore, does not call for further deliberation, more particularly in view of the fact that in present petition the claim for compassionate pension is not raised.

39. So far as demand for regular pension is concerned, the said demand was originally raised by the concerned employee himself (since deceased) and the decision dated 7.8.2014 this Court categorically rejected the said demand as meritless. The said decision dated 7.8.2014 has attained finality.

Page 20 of 29 C/SCA/20597/2015 ORDER

40. Under the circumstances, in present petition the claim for regular pension is not maintainable, cannot be considered.

41. Actually the said claim, which is raised again by the heirs/ legal representatives amounts to abuse of process of law.

42. Above discussed factual backdrop has brought out that:

(a) before the petitioners filed this petition the demand for regular pension has already been considered twice by this Court;

(b) on previous two occasions the petitions were filed by the concerned employee;

(c) On first occasion the Court, instead of rejecting the petition, permitted to submit representation and in second attempt the Court, vide order dated 7.8.2014, rejected the demand on merits and declared that the demand is "meritless";

Page 21 of 29 C/SCA/20597/2015 ORDER

(d) the said order dated 7.8.2014 is not challenged. The petitioners have accepted said order with passage of 4 years said order has attained finality;

(e) On the other hand the respondents considered, in light of Court's observation, the case for compassionate pension, however having regard to the fact that the employee came to be compulsorily retired on ground of serious misconduct (four charge and allegations) the respondents have, by two orders (18.3.2015 & 27.3.2015), decided to not approve / accept the case for compassionate pension;

(f) Thus, the case for compassionate pension also does not survive;

(g) The said two orders have, with passage of 3 years and in absence of challenge against said orders, attained finaltiy;

(h) even in this petition said orders are not challenged;

(i) even claim for compassionate pension is not raised in this petition;

Page 22 of 29 C/SCA/20597/2015 ORDER

(j) consequently, now the demand/ claim for "regular pension" as well as "compassionate pension" does not survive and cannot be entertained.

43. So far as the other demands, i.e. for provident fund, leave encashment and gratuity are concerned, it is relevant and necessary to take into account the details mentioned by the respondent panchayat in its reply affidavit. The panchayat has, in reply affidavit, averred and stated that:

"3. The Respondent No.1 most respectfully submits that Mr Sureshchandra Harjivandas k who was born on 1.12.39 joined the service of Rajkot District Panchayat on 16.8.65 as a Pharmacist. It is that Mr. Pathak who was due to retire on attaining submitted the age of superannuation on 31.12.97 was compulsorily retired through order dated 23.6.94 from the employment of Rajot District Panchayat and a copy of the order is a herewith and marked as AnnexureA. It is humbly submitted that Mr. Pathak had enjoyed leave without pay for 2476 days between 16.8.65 to 23.6.94. It is pertinent to note that out of that unauthorized absence of 1247 days was never sanctioned by the authorities and the powers are not with Rajkot District Panchayat. It is humbly stated that due to frequent unauthorized long absenteeism Mr. Pathak was issued a charge sheet and a fulfledged departmental inquiry was held against him and copies of charge sheet as well as inquiry report are collectively annexed herewith and marked as AnnexureB. The Respondent No.1 most respectfully submits that the opinion of Gujarat Panchayat Service Selection Board was obtained as per the provisions of Gujarat Panchayat Act, 1993 and the rules framed thereunder and thereafter Mr. Pathak was compulsorily retired with effect from 23.6.94 and copies of orders dated 21.11.97 and 11.9.04 are collectively annexed herewith and marked as AnnexureC. The Respondent No.4 most respectfully submits that an employee who is compulsorily retired from the Page 23 of 29 C/SCA/20597/2015 ORDER employment is not entitled to pensionary benefits.

4. The Respondent No.1 most respectful submits that petitioners herein that Mr.Pathak who was compulsorily retired with effect from 23.6.94 had passed away on 15.9.07 and as per the provisions of the applicable rules and regulations he was not getting pensionary benefits. The respnt. no.1 submits that Special Civil Application No.3595/07 was preferred before the Hon'ble High Court of Gujarat and the same was disposed of on 7.8.14 and a copy of the order is annexed herewith and marked as AnnexureD. It is submitted that through a letter dated 4.10.14 guidance of respnt. no.2 was sought on the issue of compassionate pension, gratuity, group insurance etc. as late Mr. Pathak was compulsorily retired and a copy of the letter dated 4.10.14 is annexed herewith and marked as AnnexureE. The Respondent No.1 submits that the petitioner no.1 herein asked for various benefits through letters dated 15.9.14 and 22.9.14 and she was provided details through a letter dated 19.11.14 and a copy thereof is annexed herewith and marked as AnnexureF. The Respondent No.1 most respectfully submits that a letter dated 21.11.14 was addressed to the respnt. no.2 for appropriate guidance pursuant to earlier letter dated 4.10.14 and a copy thereof is annexed as ANNEXUREG.

5. The Respondent No.1 most respectfully submits that in all an amount of Rs.2534/ is recoverable from late Mr. Pathak as per letter dated 24.11.14 addressed by Block Health Officer, Rajkot and a copy thereof is annexed as ANNEXUREH. It is submitted that as against that, therefore, after adjusting the said amount a cheque dated 4.12.14 of Rs.2636/ drawn on State Bank of India in favour of petitioner No.1 was issued and a copy thereof is annexed as ANNEXUREI.

6. It is submitted that an amount of Rs.39295/ towards House loan and an amount of Rs.10915/ towards Vehicle loan were recoverable from late Mr. Pathak and, therefore, that amount is adjusted and a copy of letter dated 6.4.15 is annexed as ANNExUREJ. It is submitted that as late Mr. Pathak was compulsorily retired he was not entitled to release of higher pay scale in view of resolution dated 31.3.05 of the Govt. of Gujarat issued by Finance Dept. and, therefore, petitioner no.1 was accordingly informed through a letter dated 5.12.14.

7. The Respondent No.1 most respectfully submits that the respnt. no.2 herein has asked for several details through letter dated 29.11.14 and the said information was provided through a letter dated 5.12.14. It is stated that as the Petitioner no.1 herein provided details for compassionate pension through a letter dated 9.12.14 the same were forwarded in a prescribed format through a proposal on 26.1214 and a copy thereof is annexed as ANNEXUREK. It is submitted that the respnt. no.2 through a letter dated 18.3.15 informed that a proposal for compassionate pension is turned down by the Finance Dept. of the Govt. of Gujarat and needful be done for the payment of gratuity and a copy of letter dated 18.3.15 is annexed as ANNEXUREL. It is most respectfully stated that the respnt. no.2 is the competent authority to take appropriate decision for Page 24 of 29 C/SCA/20597/2015 ORDER compassionate pension. The Respondent No.1 most respectfully submits that immediately thereafter a letter dated 26.3.15 was addressed to respnt. no.2 for determination of the amount of gratuity payable to the Petitioner no.1 herein and a copy thereof is annexed as ANNEXUREM. It is submitted that Petitioner no.1 herein was also informed about the same through a letter dated 27.3.15 and a copy thereof is annexed as ANNEXUREN. The Respondent No.1 most respectfully submits that Petitioners herein are paid benefits of group insurance as well as released the amount of provident fund.

The Respondent No.1 submits that Government of Gujarat through Panchayat Rural Housing & Rural Development Department has addressed a letter dated 18/03/2015 informing that Finance Department has disapproved the proposal for compassionate pension and a copy of letter is annexed herewith and marked as Annexureo."

44. From the said reply / details, it emerges that the respondent has clearly averred and stated that the amount payable towards group insurance as well as provident fund have been already released.

45. Despite this fact, the petitioners have, unfortunately, raised demand for insurance amount as well as provident fund.

46. So far as the claim for leave encashment is concerned, it is relevant to note that the said claim seems to be thoroughly misconceived inasmuch as the service of the concerned employee came to be terminated by way of compulsory retirement on the ground of continuous Page 25 of 29 C/SCA/20597/2015 ORDER unauthorised absence from duty for long period (for continuous 1247 days).

47. In that view of the matter, there would not be any leave in balance of the petitioner's leave account. Consequently, question of leave encashment would not arise at all.

48.This leaves behind the demand for gratuity.

49. As mentioned earlier, the communication dated 2.5.2015 gives out that after this Court's order dated 7.8.2014 the respondents have considered petitioner's case as a special case, and by treating the case of the deceased employee as a special case, the respondents have already paid the benefits which would be otherwise/ ordinarily payable in such cases. Even gratuity is paid as special case. That too, with interest. Necessary order (for Rs.38,205/,) came to be passed as back as in June, 2015.

50. Unfortunately, the petitioners have, even Page 26 of 29 C/SCA/20597/2015 ORDER after receiving the amount paid towards gratuity, averred and stated that the respondents have not released amount towards gratuity. The said statement by the petitioner is incorrect inasmuch as, the respondents have specifically emphasised in the reply affidavit that:

"The Respondent No.1 submits that however, an amount of Rs.20,196/ towards gratuity as well as interest there 9% amounting to Rs.38,205/ are ordered to be paid to the petitioner through order dated 23/06/2015 and a copy of said order is annexed herewith and marked as AnnexureP. It is submitted that thereafter the said amount is paid to the petitioner No.1 through her Advocate during the hearing of the proceedings of M.C.A. No.519 of 2015 in Special Civil Application No.3595 of 2007 on 15/07/2015."

51. This aspect also emerges clearly from the details mentioned by the respondents in their reply affidavit, more particularly in paragraph No.7 of the reply affidavit and also from the order dated 23.6.2015 passed by the District Panchayat.

52. Upon being confronted, by learned AGP and learned advocate for Panchayat, with the said fact, learned advocate for the petitioner submitted that there is dispute with regard to Page 27 of 29 C/SCA/20597/2015 ORDER computation of gratuity.

53.The petitioners do not appear to have approached the authority, after having received the payment towards gratuity and the orders dated 2.5.2015 and 23.6.2015 with the claim or allegation that the computation of gratuity is not proper. Any averment to that effect is not found from the memo of petition also. On the contrary, the petitioners have alleged that the gratuity is not paid. The petitioners have not come forward with the submission that the computation of gratuity is not proper. Under the circumstances, actually, such grievance which is raised by learned advocate during the hearing of the petition, without any foundation in the petition, does not deserve to be entertained.

54. However, the Court will not be and cannot be insensitive towards entitlement for appropriate amount towards gratuity and that, therefore, the Court considers it appropriate to clarify that if Page 28 of 29 C/SCA/20597/2015 ORDER at all there is any merit in the grievance of the petitioners that the amount is not properly calculated and if the petitioners are able to demonstrate that aspect, then the petitioners may approach the authority (with appropriate details and calculation), their own calculation (with regard to gratuity) and place it before the competent authority. The competent authority will consider the said details and if any substance is found in the calculation (for gratuity) submitted by the petitioners and if the competent authority is convinced / satisfied that any rectification is required to be made, then necessary action may be taken and appropriate order (for gratuity) may be passed.

55. With aforesaid clarifications, directions and observations, the petition is disposed of. Orders accordingly.

(K.M.THAKER, J) saj/bharat Page 29 of 29

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Gujarat High Court