Mahendrakumar A Vyas vs State of Gujarat

S.G. Shah, J. (Oral) - Heard learned advocate Ms.Mamta R. Vyas for the petitioner and Ms.Amita Shah, learned Assistant Government Pleader for Respondent No.1 and Mr. Pradeep Patel, learned advocate for Respondent Nos.3 and 4. Perused the record.

It is undisputed fact that the petitioner was appointed as a Work Charged Supervisor (Civil) in the pay scale of Rs.175340 in Sabarkantha District Panchayat on 16.3.1969. It is also undisputed fact that thereafter he was appointed as such by order dated 28.9.1970 in Kheda District Panchayat under respondent no.2 and he resumed his duties on 1.10.1970. By order dated 4.3.1974 issued by respondent no.4, the services of the petitioner was treated as continuous services from 16.3.1969 itself relying upon the Government Resolution dated 10.2.1972 which is referred in such order dated 4.3.1974. Appointment of the petitioner with Kheda District Panchayat was pursuant to selection by Gujarat Panchayat Selection Services Committee. It is also undisputed fact that pursuant to such order, he is appointed in the scale of Rs.250480 and a letter also confirms that the petitioner has joined the services with respondent nos.2, 3 and 4 without any break in services and, therefore, while fixing his salary on 1.10.1970, his basic pay was fixed at Rs.262/- i. e. considering his continuous services from 21.3.1969. Therefore, on the date of such order i.e. on 4.3.1974 considering the regular increment for 4 years from 1970 to 1973, the basic salary of the petitioner was fixed at Rs.298/- instead of Rs.286/as if petitioner has joined the services on 1.10.1970 with basic salary of the grade being Rs.250/. Thereby, though basic salary of the petitioner on 1.10.1970 on new post is Rs.250/- and though he was working in the pay scale of Rs.175340 with Sabarkantha District Panchayat on 1.10.1970, his salary was not fixed at Rs.250/- but fixed at Rs.272/- i. e. after considering the period of services from 21.3.1969 as continuous services of the petitioner for all purposes.

Unfortunately, when petitioner retired on 30.9.2001 on superannuation, by an order dated 17.6.2002 provisional pension of the petitioner was fixed considering pending departmental inquiry and calculating the service period as 32 years, 6 months and 9 days i.e. as if the petitioner has joined in the services only on 1.10.1970. When petitioner has represented again such decision of the Government, the respondent no.4 has informed the petitioner to get the order treating the earlier period as continuous period of service, therefore, petitioner has asked for certified copies of several documents. However, on 2.11.2006, respondent no.3 has conveyed the petitioner that orders regarding treating the period of service of petitioner as continuous services were not available though necessary efforts were being made to trace out the same. Petitioner has continued the correspondence on the subject but, unfortunately all the efforts were gone into vain. In September, 2007, respondents have come forward with a case that services of the petitioner was to be considered for 31 years only for pensionary benefits and decided to recover the amount of pension and gratuity for the period from 1.10.2001 to 31.10.2007 as if the petitioner was not in service for all such period. It is undisputed fact that finally pension was paid to the petitioner on 1.10.2007 after fixation but not considering the period of his services from 16.3.1969 to 30.9.1970 as continuous services. Whereas, in departmental inquiry, the petitioner was imposed a penalty of cut in pension of Rs.2,00/for 3 months vide order dated 24.11.2004. There was another order dated 27.6.2003 imposing the penalty of Rs.100/as cut in pension for one year. However, at present irrespective of such penal orders against which there is no grievance by the petitioner, the case of the petitioner is based on a simple issue that though he was in services from 16.3.1969 and though his salary was so fixed by office order dated 4.3.1974 and though such fact has very well endorsed in his service book also, copy of which is produced at Annexure ''D'' (Page No.22), the respondents have acted arbitrarily while fixing the pension by reducing the period of his services from 16.3.1969 to 1.10.1970.

The petitioner has produced relevant documents on record which includes the office order dated 4.3.1974 at Annexure ''M'' so also copy of the service book at Annexure ''D'' and appointment order dated 16.3.1969 at Annexure ''B.'' Perusal of Annexure ''B'' confirms that the petitioner has been appointed on 16.3.1969 whereas order dated 28.9.1970 confirming the appointment of the petitioner in the scale of Rs.250480 with respondent nos.3 and 4 is at Annexure ''C'' and communication dated 5.9.2006, 2.11.2006 and 12.2.2007, 19.9.2007, 4.1.1997, 21.9.1971 and 16.10.1972 at Annexure ''E'' to ''L'' respectively. Such communications confirm that the petitioner was in service as disclosed by him and he is entitled to pension. However, respondents have considered the period of services from 1.10.1970 though he was in services since 16.3.1969. It also confirms that relevant record is not available with respondent nos.3 and 4 though copies were asked for by the petitioner. It also confirms about the representation by the petitioner and unfortunately, nonaction on the part of the respondents. However, amongst all such documents, reference to letter dated 21.9.1971 and 16.10.1972 at Annexure ''K'' and ''L'' are material wherein it is stated by respondent no.2 to respondent no.3 that services of the petitioner is to be considered as a continuous services from 16.3.1969 so far as leave and pension are concerned. For such disclosure, respondent no.2 has relied upon a letter dated 5.7.1967 by the State Government. Whereas, in letter dated 16.10.1972 at Annexure ''L,'' the District Development Officer of the Kheda District Panchayat has conveyed the Taluka Development Officer of Petlad to consider the services of the petitioner as continuous service. However, both such letters are simple copies i.e. neither bearing signature of the Officer nor an endorsement that it is a true copy but when the petitioner has produced such documents in the petition and disclosed this fact on oath and, thereafter, when respondents have come forward with said clarity which is otherwise disclosed on record that they do not have original record though copy of which were called by the petitioner and, thereafter, when respondents have not filed any affidavit-in-reply to negativate any such contention of the petitioner, an adverse inference is required to be drawn against the respondents that either they have no defense to put forward or at least whatever is contended by the petitioner is true and correct.

In any case, the perusal of entire record makes it clear that the respondents have considered the service of the petitioner from 16.3.1969 while fixing the salary as back as from 4.3.1974 itself. Practically petitioner had been paid the salary from the year 1970 itself as per such revised pay scale as if petitioner is in continuous service since 1969. In view of such clarity, there is no reason for the respondents to consider the service period of the petitioner as it is done in the present case without assigning any reason whatsoever in any manner. Therefore, such act of the respondents are certainly considered to be arbitrary and against the settled principle of law as well as service jurisprudence.

Therefore, I have no hesitation to allow this petition wherein petitioner has simply prayed to fix his pension as if he is in services from 16.3.1969 i.e. he has completed 33 years of services as already fixed by earlier order dated 17.6.2002 copy of which is at Annexure ''E.'' The provisional pension is being paid as per such calculation. Petitioner has also, therefore, prayed to lease the amount which is already recovered by the petitioner from his pension for the period from 1.10.2001 to 31.10.2007 with arrears of pension, commuted pension and gratuity with 10% interest.

It would be appropriate to recollect the decisions as under:

(1) 2003 AIR SC 3966 between KSRTC v. K.O. Varghese

(2) AIR 2001 SC 2433 between Gorakhpur University v. Shitla Prasad Nagendra

(3) AIR 2000 SC 1918 between R.Veerabhadram v. Government of AP

(4) State of Kerala v. M.Padmanabhan Nair between 1985 (1) SCC 429

(5 ) Vijay L.Mehrotra v. State of U.P., AIR 2000 SC 3513(2) and

(6 ) S.K. Dua v. State of Haryana reported in AIR 2008 SC 1077

The sum and substance of all above decisions is quite clear that State authorities are liable to pay interest on delayed payment of retired benefits.

In view of above, this petition is allowed. Thereby, now, the petitioner is entitled to pension as if he is in service from 16.3.1969 till his date of superannuation i.e. 30.9.2001. If any amount of pension is not paid as per such consideration, then, respondents have to calculate all such benefits and shall release the payment of arrears as per such new calculation within four months with 6% simple interest from the date of receipt of copy of this order, without fail. If any amount is recovered from the petitioner as if he is not entitled to such amount, then, all such amount needs to be refunded to him with 6% simple interest. However, if order of departmental inquiry regarding cut in pension is implemented, then, that orders are not disturbed by this decision and, therefore, respondents are free to calculate the pension accordingly. Effect of such orders can be given while calculating the final pension.

It is needless to mention that if the respondents have erroneously withheld payment for which the petitioner herein is entitled in law for payment of penal amount on the delayed payment of gratuity under the provisions of the payment of Gratuity Act, 1972.

For the reasons stated above, I award interest at the rate of 6% interest on the delayed payment from the date of entitlement till the date of the actual payment. If this amount is not paid within four months from the date of receipt of a copy of this order, the same shall carry interest at the rate of interest 9% per annum from the date of amount falls due to the deceased employee.

Present petition is allowed in above terms. Rule is made absolute to the aforesaid extent. Direct Service is permitted.