Gujarat High Court
Professor A S Kasliwala (Abdulkader ... vs State Of Gujarat on 20 March, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/17087/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17087 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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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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PROFESSOR A S KASLIWALA (ABDULKADER SULEMAN KASLIWALA)
Versus
STATE OF GUJARAT & 6 other(s)
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MS RITU GURU AGP for the Respondent(s) No. 1,2,6
MR NK MAJMUDAR(430) for the Respondent(s) No. 7
RULE SERVED BY DS(65) for the Respondent(s) No. 3,4,5
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 20/03/2019
ORAL JUDGMENT
1. The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking the following reliefs: "18(a) To admit this petition and to issue Notice for Final disposal Page 1 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT on returnable date as the petitioner is already aged 70 years and yet without pension and other retirement benefits.
(b) To direct the respondent - State authorities to forthwith sanction and pay the Pension, Gratuity, Leave Salary, Commuted Pension and all other retirement benefits to the petitioner, together with interest at the rate of 18% per annum on the arrears of salaries and retirement benefits for the period from the date of retirement i.e. 14.06.2007 to the date of actual payment.
(c ) Pending the hearing and final disposal of this petition, be pleased to grant adinterim order in terms of paragraph 18(b) above, subject to further orders that may be passed in the present petition ;
(d) To grant any other appropriate and just relief/s ;
(e) To quash and set aside the impugned orders of the State Government dated 03.08.2016 and 04.08.2016 as per Annexure V colly. as well as the impugned Pension Payment Order dated 04.08.2016 as per AnnexureP, and be pleased to direct the respondents to issue fresh Pension Payment Order on the basis of the entire service period of the petitioner as qualifying service for the purpose of pension from 07.0.1974 to 14.06.2007, and to pay all the retirement benefits to the petitioner accordingly;
(f) To direct the respondents to make the necessary payfixation before issuing the revised pension Payment Order in accordance with law;
(g) To direct the respondents to pay gratuity of Rs.10,00,000/ to the petitioner;
(h) To direct the respondents to pay the arrears of salary for the period from 01.01.1996 to 07.04.1998 to the petitioner;
(i) To direct the respondents to pay the Leave Encashment amount to the petitioner on the basis of the revised Last Pay after the necessary Pay fixation as pr the Chaddha Pay Commission;
(j) To direct the respondents to pay all the amounts to the petitioner along with interest at the rate of 18% per annum;"
2. The case of the petitioner is that the petitioner was appointed as Lecturer in V.T. Choksi Sarvajanik Law College, Surat on 07.08.1974 Page 2 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT and then was appointed as a Principal of the said College on 01.03.1989 and he retired as a Principal of the said College on 31.03.2007, but was continued till the end of academic term upto 14.06.2007 in view of the policy of the government. It is the case of the petitioner that the petitioner was wrongly suspended and the College management took a decision on 07.05.1999 to terminate the service of the petitioner. On 07.05.1999 the petitioner therefore, approached the learned Gujarat Affiliated Colleges Services Tribunal (hereinafter referred to as the "Tribunal") by way of Application No. 49 of 1999 and by way of interim order dated 08.09.1999, the learned Tribunal was pleased to stay the operation of the impugned order of the termination. However, during the passage of time, and during the pendency of the said proceedings, the college management and the petitioner appears to have entered into a settlement and on 11.06.2007 in due deference to the said settlement, the order of punishment appears to have been recalled and the settlement took place, on account of payment of lump sum amount of Rs.9,25,000/ by the college management to the petitioner by way of salary for the intervening period. The petitioner was then reinstated in the service, but on account of attaining the age of superannuation, retired from the service till the end of the academic term on 15.06.2007. The settlement was produced on record on 22.08.2007. It has been further asserted that when the said settlement was produced on record, learned AGP appearing then before the learned Tribunal made an endorsement that he has no objection on the said settlement and the proceedings came to be disposed of on 13.09.2007. The learned Tribunal while disposing of the same was pleased to issue certain directions which read as under : "6. So, considering the said settlement arrived at dated 11.06.2007 purshis submitted by the respective parties, I hereby feel it proper to give direction to the respondent authority - management to proceed for the pay fixation of the Applicant as per the rules and regulations of the Government with effect from Page 3 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT 1996 till 06.04.1998. I also hereby give direction to the Respondent college to send the pay bill to the Government for the above mentioned period and to pay it from the amount they received from the Government to the Applicant. Further, I hereby give direction to the Respondent management to pay the remaining amount of senior scale to the Application. As per the said Purshis, the respondent management has to pay Rs.9.25 lacs as full and final settlement to the Applicant which would be paid by the Respondent management to the Applicant within three months after the receipt of this order. I also hereby give direction to the Respondent management to withdraw the removal order given to the Applicant and to retire the Applicant from the services of the Respondent college and to pay him retirement benefits like Gratuity, Leave Encashment and Pensionary benefits and for the same, the Respondent management has to send a proposal to the Government and the Government has to consider the same and to pay the amount of Gratuity, Leave Encashment as early as possible tot he Applicant. The Respondent management has to send a proposal for pension to the Applicant and Government has to fix up the amount of pension and sanction the same with immediate effect after the receipt of this order.
7. So, in view of above, considering the settlement Purshis and understanding between the parties, I hereby dispose of this matter as infructuous as removal order of the Applicant is withdrawn by the Respondent management and pursuant to the said direction given to the Respondent management as well as the Respondent No. 5, the matter is disposed of as allowed.
8. There is no dispute regarding the fact that the Applicant has served in the Respondent college ad during his service period he was suspended from the services of the Respondent college and then dismissed from the services of the college. But, pursuant to this settlement Purshis, the Applicant is entitled to all the Pensionary benefits from the Respondents authorities i.e. 1 to
5. So in view of the above, the matter stands disposed of as allowed."
2.1. It is further the case of the petitioner that the respondent authorities have not implemented the order passed by the learned Tribunal. Resultantly, the Execution Application No. 2 of 2009 was submitted in Application No. 49 of 1999 before the learned Tribunal and on account of the enactment of the new legislation namely Page 4 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT Gujarat Educational Institutions Services Tribunal Act, 2006, new Tribunal was constituted. As a result of this, the Execution Application was renumbered as 14/2014. The said Execution Application was adjourned from time to time that reflects that the learned Tribunal has no jurisdiction for execution of the orders of the learned Tribunal and it does not have the machinery for the execution proceedings. The petitioners in that uncertainty was deprived of the benefit of his retirement benefits like pension, gratuity, commuted pension, leave salary, group insurance and all other consequential and incidental benefits. Accordingly, the petitioner has approached this Court by way of the present petition.
3. The petition appears to have been admitted and since the petitioner being a retired Principal of law college in the year 2007, by issuing certain orders, the matter was posted and ultimately, has come up for final disposal before this Court in which learned advocate Mr. K.B. Pujara appearing on behalf of the petitioner has vehemently contended that the petitioner at the age of nearly 70 years has been tossed in the litigation, though has made out a case of claiming benefits, the same has not been made available to the petitioner. It has been submitted that the settlement which took place between the management and the petitioner was rather endorsed at the relevant point of time by the government representative, and the said order has not been challenged, the action of non consideration of the case of the petitioner is resulting into serious prejudice. It has been submitted that similarly situated lecturers have been extended such benefit, whereas though the petitioner has retired long bank, the benefit is not available. Surprisingly, as per the say of learned advocate Mr. Pujara that period has been excluded without granting any opportunity to the petitioner nor without extending any opportunity of explanation and, therefore, the decision to curtail the period is grossly in violation of the principles of natural justice. It has further been contended that Page 5 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT though the gratuity amount has not been paid and that delay which took place over number of years deserves to be considered with interest upon it at the rate of 18%. It has further been contended that a copy of the settlement dated 22.08.2007 was already made available to the petitioner thereupon, the learned Tribunal disposed of the application with a direction by way of order dated 13.09.2007 which is not challenged anywhere in the proceedings and, therefore, the authorities are not obeying the directions which are issued by the learned Tribunal. Learned advocate Mr. Pujara has submitted by referring to page 18 that the option has been given specifically on 08.12.2000 and similar options have been given to other sets of employees as well and though they have submitted the option at much belated stage, their cases have been considered and have been extended the benefit, which aspect is also referred to by learned advocate Mr. Pujara by drawing attention to the orders passed by this Court in other proceedings. It has further been submitted that there is no provision under the Act or the Rules to reduce the period, thereby to deprive their legitimate benefit. In fact, it is nothing but a clear example of non compliance of the direction of the learned Tribunal. Hence, the relief prayed for deserves to be granted. The petitioner has further contended that he has now reached the age around 74 years and except para 5 of page 53 of the petition compilation, there is no other impediment. On the contrary there was a clear no objection, referred and endorsed on the purshis of settlement which is reflecting on page 52. Of course, there is a condition mentioned that there shall be no objection, provided, no liability of government will arise. In that case, such is the position, the petitioner is entitled to seek benefit.
3.1. Learned advocate Mr. Pujara has submitted that this deprivation of the legitimate benefit is resulting reduction of the period of length of service entailing several consequential and monetary loss in view of the settled position of law, the same could not have been Page 6 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT affected without granting any opportunity to the petitioner, and there appears to be a gross delay in dealing with the grievance of the petitioner. Hence, while granting the relief, the Court may kindly provide appropriate rate of interest upon such payment till realization, which would meet the ends of justice. Learned advocate Mr. Pujara has drawn attention to some of the averments from the draft amendment which has been carried out pointing that several other employees have been extended the benefit which has not been answered and such averments on oath are made are contained in para 13(F). In similar situation when the benefits have been extended to the other sets of employees, there is no justifiable reason as to why the petitioner to be singled out. Hence, the action is apparently violative of Article 14 of the Constitution of India. Learned advocate Mr. Pujara has further submitted that the order of suspension dated 10.01.1998 was stayed by the learned Tribunal and that stay continued till 07.04.1998. Even this order of removal was also stayed by the learned Tribunal on that very date and the management had paid even the subsistence allowance upto the date of retirement instead of making full payment of salary since the order of the learned Tribunal is stayed. It has further been submitted that the state authorities did not act in accordance with the learned Tribunal's attribution though there was a specific order to pay the unpaid salary for the period commencing from 01.01.1996 to 08.04.1998. As a result of this, learned advocate has requested that even the amended prayers which are permitted to be incorporated vide order dated 15.11.2007 deserves to be considered and granted. There is no other legitimate reason for the authority to deprive the petitioner from the salary.
3.2. Learned advocate Mr. Pujara has even drawn attention to the chart which has been produced by way of the draft amendment indicating that no proper effect is given to his retirement benefits which have been paid so far. The effect cannot be said to be in Page 7 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT consonance with the principles of equality. Hence, the entire exercise is dehorse as to Articles 14 and 16 of the Constitution of India. It has further been contended by drawing attention to the draft amendment that after the decision of this Court in earlier petitions thereto the order dated 11.02.2016 (Coram: J.B. Pardiwala, J.) the pension payment order dated 04.08.2016 issued by the authority is also not in accordance with the law since the petitioner's entitlement as such being issued without necessary pay fixation of the petitioner on the basis of the Mehrotra Commission/5th Pay Commission with effect from 01.01.1996 and also of Chaddha Commission/6th Pay Commission with effect from 01.01.2006. If appropriate pay fixation is made then, the petitioner's salary of the last month of May/June, 2007 would come to approximately Rs.80,000/ and on that basis the amount of pension, gratuity, commuted pension, leave encashment and other retiral benefits ought to have been paid. By giving example of one Mr. Ranja S Pandya has analyzed his pension that he joined the services as Lecturer in petitioner's college on 17.09.1989 who retired with effect from 14.06.2011 and his length of services remained 26 years, as against the petitioner's length of service of 40 years, still however, if the tabular charge, if to be looked into, reflecting in para 13(B) it would make it clear that there is huge difference between what the petitioner is getting. The petitioner was required to be refunded the employees' contribution of the Provident Fund to the extent of Rs.2,58,840/. However, in the pension payment order dated 04.08.2016 the respondents have stated that the said amount to be is adjusted Rs.8,19,808/ . Similar is the case with respect to the amount of payment of gratuity to be paid at Rs.10 lakhs and not at the rate of Rs.3,50,000/ and as such, serious loss is caused to the petitioner on account of such act of the respondent authorities. It has further been submitted that the petitioner got his superannuation on 14.06.2007, however, the respondent authorities have wrongly treated the period from 10.01.1998 to 14.06.2007 as the Page 8 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT period of dismissal and as such, not amenable for the pension purpose. Resultantly, the impugned action is not only unjust, arbitrary, but violative of Articles 14 and 16 of the Constitution of India.
3.4. Learned advocate Mr. Pujara has reiterated that the order of suspension was also stayed by the learned Tribunal and in the similar way, even the order of removal was also stayed by the learned Tribunal and as such, the petitioner deemed to have been treated as on date and all effect of consequential as well as revision of pay ought to have been given. If the petitioner's services were only terminated by bringing all these circumstances to the notice of the Court, learned advocate Mr. Pujara has submitted that the relief prayed for deserves to be granted in the interest of justice. No other submissions have been made.
5. To meet with the stand taken by the learned advocate for the petitioner, learned AGP Ms. Ritu Guru has submitted that no case is made out by the petitioner, on the contrary, the settlement which took place was clearly resisted by mentioning that if it is not prejudicially to the interest of the State then there is no objection and if that is to be treated as acceptance on the part of the authority, then serious prejudice will caused to the interest of the State. The internal affairs which took place between the management and the petitioner cannot be thrusted upon the State's exchequer. Hence, their internal fighting may not bound the state authorities. It has further been contended that actually the petitioner has never worked throughout the period which was rightly excluded and since the same was not a part of a qualifying service, the authority has rightly not made available the benefits which are claimed as a matter of right. Learned AGP Ms. Ritu Guru has further submitted that the calculation which is tried to be pressed into is quite contrary to the rate at which the Page 9 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT petitioner is entitled to the benefit. Hence, since the petitioner is not worked at all during that period, he is not entitled to seek any benefit for the period in question. It is settled position of law that if the concerned employees has not worked actually, then, the said period cannot be treated as a part of the qualifying services unless it is explicitly made it clear that there is no provisions shown by the learned advocate for the petitioner to indicate that despite not worked, the period has to be counted as qualifying service.
5.1. Learned AGP Ms. Ritu Guru has also further submitted from the contents of para 6 and 7 and reiterated that the period for which the petitioner has admittedly not worked, the same cannot be treated rightly as not qualified services period. Of course, learned AGP Ms. Ritu Guru has candidly submitted that the order dated 13.09.2007 passed by the learned Tribunal has not been challenged by the State authorities, but no automatic benefit on account of such inaction be passed on to the petitioner. In fact, if the order dated 13.09.2007 is not implemented, the in action to challenge the same or raise the grievance is silent on record and there is no explanation offered by the petitioner. It is after almost a period of six years it appears that the execution proceedings have been initiated and the petitioner was quite conscious about the fact that since he has not worked during that period, has not agitated at the relevant point of time. Learned AGP Ms. Ritu Guru has then submitted that there cannot be attributable delay of the respondent authorities, on the contrary, the delay in submitting the execution is also a questionable period which has to be explained by the petitioner. Therefore, in any case, the interest cannot be given to the petitioner. The misconstruction has taken place at the behest of the petitioner about the reading of the consent terms which are produced at page 52 and based upon it, the learned Tribunal disposed of the main proceedings. Now if endorsement which has been made by the learned AGP at the relevant point of time, it would be quite clear Page 10 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT that on that very next date, when the copy was served, it was clearly written that if there is no likelihood of creation of liability against the government, then there is no objection about the settlement. So that endorsement is clearly indicative of the fact that there was a resistance of the authority from that juncture itself. Hence, no case is made out by the petitioner to claim any relief and thereto in exercise of extra ordinary jurisdiction which is purely questionable in nature.
6. Having heard the learned advocates for the respective parties and having gone through the material on record it appears that by making amendment not only in the averments but in the prayer clause multiple prayers have been inserted as it appears which has created enough confusion. On reading of the amendment which has taken place subsequently in the petition has generated the main grievance that other similarly situated persons have been extended the benefit whereas, the petitioner is not extended such kind of benefit. Para 13(B) and 13(F) are the averments. Originally the relief which was prayed for is with regard to sanction of the payment of pension, gratuity, leave salary, computed pension and other retirement benefits together with interest at the rate of 18% per annum on the arrears to be paid for the period from the date of retirement till annual payment and subsequent multiple amendment in the facts and the prayers as inserted, the reliefs with regard to quashing and setting aside the order of the State authority dated 03.08.2016 and further sought direction to direct the respondent authority to issue fresh pension payment order on the basis of the entire services of the petitioner as qualifying services for the purpose of pension from 07.08.1974 to 04.06.2007 and to pay all the benefits. A further prayer is added to the effect that necessary pay fixation before issuing revised pension payment order to be made by the authority. Additionally, the amount of gratuity of Rs.10 lakhs is also sought and further direction is sought to pay arrears for the period Page 11 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT sanctioning from 01.01.1996 to 07.04.1998 and additionally has also sought direction upon the authority to pay the leave encashment amount to the petitioner on the basis of the revised last pay after necessary pay fixation as per Chaddha Pay Commission and over and above other all these reliefs of payment be made with interest at the rate of 18%. This amendment has practically changed the basic substratum of the main relief when the petition was brought before the Court on 08.08.2015 as it reflects. This Court while examining the grievances of the petitioner of multiple in nature, found that the petitioner will have to make appropriate representation before the respondent authority for claiming such benefit, instead of straightway pleading in the petition and thereto by way of making one amendment after another. The Court while examining on earlier occasion, made in Special Civil Application No. 17087 of 2015 in which also a review was submitted being Misc. Civil Application No. 55 of 2017 in which also after hearing at length, the Court was constrained to recall the original order by restoring the main matter to its original file with a liberty to challenge the order dated 03.05.2016 passed by the respondent authority. A perusal of the relief clause which has been amended is reflecting that not only the order dated 03.08.2016 is passed but then along with it if further reliefs have been added in omnibus manner, the Court cannot examined all these multiple issues in a combined petition like this. By addition of the grievances at later point of time, the main grievance appears to have been sideline and something more is being agitated, which practice, this Court is not inclined to encourage. As a result of this, on this short ground, this petition in the present form is not entertained. However, a liberty is granted to the petitioner to file appropriate petition by making proper averments with regard to the multiple grievances which are raised in the present petition. Resultantly, this petition is disposed of with a liberty to the petitioner to submit a substantive petition by making proper averments and the Court has clarified that no merit is Page 12 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019 C/SCA/17087/2015 JUDGMENT examined, in view of the aforesaid peculiar set of circumstances. It is expected that the petitioner if so desire, shall submit the petition in the proper format.
7. Accordingly, the petition stands disposed of with the aforesaid liberty. Rule is discharged with no order as to costs.
(A.J. SHASTRI, J) /phalguni/ Page 13 of 13 Downloaded on : Sun Jun 30 01:10:32 IST 2019