Gujarat High Court
Karaniba vs Gujarat Electricity Board And Anr. on 7 December, 1989
Equivalent citations: (1990)2GLR1003
JUDGMENT
1. The petitioner who is the widow of an ex-employee of the Gujarat Electricity Board claims family pension. Her husband was an employee of the former State of Rajkot and thereafter in Saurashtra Electricity Board, Bombay Electricity Board and Gujarat Electricity Board successively. He retired on 14th December 1970 and he was in receipt of regular super annuation pension till the date of his death i.e. 20th October, 1983. From that date onwards, widow of the employee claims family pension.
2. The respondent-Board contends that the family pension is not payable to her. Para 7 of the affidavit-in-reply reads as follows :
"The Gujarat Electricity Board has also adopted the G.R. of Finance Department dated 1st January, 1972 for grant of family pension. A copy of the Revised Family Pension Scheme is annexed at Annexure 'Y'. The said Resolution Annexure 'Y' shows that it came into force with effect from 1st June, 1971 and it applies in the case of those employees who retired on or after 1st June, 1971. It is specifically stated in this Resolution that the Family Pension Scheme is not applicable to the persons who retired from 1st June, 1971. Thus, even under the Revised Pension Scheme, contained in the Resolution dated 1st January, 1972, the petitioner is not entitled to receive family pension."
That Government Resolution dated 1st January, 1972 Annexure 'Y' is at page 24 in the paperbook. Para 1 of that Scheme provides that the Scheme shall be applicable to all the regular employees who were in service on 1st June, 1971 and thereafter. The deceased employee was not in service on 1st June, 1971 because he had retired on 14th December, 1970. Para 2 of the scheme provides that the family pension would also be admissible in the case of a retired Government Servant who has retired on or after 1st June, 1971, and who has died thereafter. In the present case, the retired Govt. Servant had not retired after 1st June, 1971. It is because of these contentions that the Board contends that since the petitioner's husband had retired on 14th December, 1970 and was not in service on 1st June, 1971, this Scheme is not applicable to the present case and therefore the widow of that employee who has retired before 1st June, 1971 is not entitled to family pension.
3. Miss. Trivedi, learned Counsel for the petitioner, has relied on the case of Indumati A. Patel v. State of Gujarat, 1987 (1) GLR 389. In that case, this very Government Resolution dated 1st January, 1972 was considered and it was held that the cut-off date of 1st June, 1971 was irrational, arbitrary and illegal. It was held that pensioners constitute a class by themselves and no further classification could be made by introducing a criteria of being in service on a particular date and retiring thereafter and therefore the provision regarding the cut-off date by insertion of the words 'who were in service on or after 1st June, 1971' was held to be discriminatory. The judgment of the Supreme Court in D. S. Nakara v. Union of India (1983-I-LLJ-104) was followed wherein also the similar artificial cut-off date was struck down. Another Supreme Court judgment in the case of Poonamale & Ors. v. Union of India 1985 (3) SCC 345 was also referred and followed.
4. The learned Counsel for the Board submitted that the petition is grossly delayed. The petitioner's husband had expired in 1983 and the petition had been filed in 1987 and therefore even civil suit would have become time barred. The petitioner is an old and illiterate widow of a small employee. Before filing the petition, the petitioner had made an approach to the Chairman of the Board by way of a notice through advocate provided by the Legal Aid and the petition was filed thereafter when there was no response from the Board. Having regard to these circumstances, this delay cannot be said to be fatal so as to result in dismissal of the complaint. The petitioner's husband died on 28th October, 1983 and the petition was filed on 2nd September, 1987. So the claim for the period from September 1984 to September 1987 would be within the period of limitation. In the facts and circumstances of the case, even the earlier claim cannot be said to be time barred. The delay has prejudiced the case of the petitioner and not of the respondent-Board.
5. The learned Counsel for the respondent-Board drew my attention to para 7 of the Scheme in the Government Resolution where employees were required to exercise their option either for the old pension rules or for the new Scheme and that option was required to be exercised by 31st May, 1972. This para is not applicable to the facts of the present case in view of the fact that by the terms of the Resolution, it was not applicable to the persons who had retired before 1st June, 1971 and therefore the deceased employee could not have exercised that option. Moreover, para 10 of the Scheme provides for deemed option if this Scheme is more beneficial to the family of the Government servant who had died during the period between 1st June, 1971 to 1st January,, 1972. This deeming fiction would apply to the Government servants who had retired prior to 1st June, 1971. In such cases the family members of the deceased Government servants entitled to receive family pension, under the Scheme has to surrender the amount equal to two months pay. That amount can be adjusted from the amount that would become payable to the petitioner.
6. In the result the petition succeeds and rule is made absolute by directing that the respondent Board shall pay family pension according to the aforesaid Scheme adopted by the Gujarat Electricity Board and contained in Government Resolution dated 1st January, 1972. Such family pension would be payable from November 1983 at the rates applicable from time to time.
7. An amount of Rs. 15,000/- has been deposited in this Court under the interim orders and is lying in deposits. The Board is directed to deposit all the arrears of family pension accruing till 31st December, 1989 in this Court on or before 31st January, 1990. The family pension accruing from 1st January, 1990 shall be remitted to the petitioner regularly. On such deposit, further orders regarding investment and withdrawal would be passed hereafter. For the time being, the petitioner is permitted to withdraw a sum of Rs. 25,000/-. The office is directed to make a payment of Rs. 2500/- to the petitioner.
8. No order as to costs.