Bombay High Court
Smt. Vanita Shankar Agawane vs The Deputy Chief Accountant (E/S on 3 October, 2012
Bench: V.M. Kanade, Rajesh G. Ketkar
WP5283_10.sxw
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5283 OF 2010
Smt. Vanita Shankar Agawane )
Age-40 years, Occ.-Labour )
R/o-At Post-Gadegaon, )
Tal-Pandharpur, Dist-Solapur )... Petitioner
Vs.
1. The Deputy Chief Accountant (E/S), )
Brihanmumbai Mahanagarpalika, )
M-ward, 3rd floor, Road No.1, )
Near Natraj Cinema Hall,
ig )
Chembur, Mumbai - 400 017 )
2. The Chief Accountant (Treasury) )
(Family Pension Department) )
Municipal Corporation of Greater Mumbai, )
Municipal Old Bldg., Ground Floor, )
Room No.26, Mumbai - 400 001 )
3. The Assistant Commissioner, )
General Administration of )
Municipal Corporation of Greater Mumbai, )
Mahapalika Marg, Opposite C.S.T., Mumbai )
4. The Municipal Commissioner, )
Municipal Corporation of Greater Mumbai, )
Mahapalika Marg, Opposite C.S.T., Mumbai )
5. Municipal Corporation of Greater Mumbai, )
A statutory body formed and established under)
the Mumbai Municipal Corporation Act, 1888,)
having its office at Municipal Corporation of )
Greater Mumbai, Mahapalika Marg, )
Opposite C.S.T., Mumbai )
6. The State of Maharashtra )
Through the Secretary, )
Social Welfare Department, Mantralaya, )
Mumbai - 400 032 )... Respondents
1/8
::: Downloaded on - 09/06/2013 19:12:35 :::
WP5283_10.sxw
Mr. R. V. Bansode for the Petitioner.
Ms M. M. Bhoir for Respondent Nos.1 to 5.
Mr. C. R. Sonawane, AGP for Respondent No.6.
CORAM : V. M. KANADE &
R. G. KETKAR, JJ.
DATE : 3RD OCTOBER, 2012
ORAL JUDGMENT: (Per V. M. Kanade, J.)
Heard Mr. Bansode, learned Counsel for the petitioner, Ms Bhoir,
learned Counsel for respondent Nos.1 to 5 and Mr. Sonawane, learned
AGP for respondent No.6 at length.
2.
By this Petition under Articles 226 and 227 of the Constitution of
India, the petitioner is seeking appropriate writ, order and direction for
quashing and setting aside the impugned order dated 3 rd March 2009
passed by respondent No.4 - Municipal Commissioner of the Municipal
Corporation of Greater Mumbai (for short 'Corporation'). The petitioner
is also seeking a further writ, order and direction directing the
respondent authorities to grant family pension with retrospective effect
to the petitioner.
3. Brief facts are as under:
4. The petitioner's husband - Shankar Maruti Agawane was working
in the Corporation Since 10th August 1982. Initially, he was appointed as
a Junior Auditor. The petitioner married Shankar Maruti Agawane on
20th November 1984 and started residing with her husband at Badlapur.
WP5283_10.sxw
Petitioner's husband died on 11th April 1986 on account of an accident,
which took place at Badlapur. According to the petitioner, at the time of
her husband's death, she was staying with her father since she had gone
there to deliver a child, and at the time of her husband's death, her child
was two months old. It is the case of the petitioner that she continued to
stay with her father, and as such, it was not possible for her to apply for
family pension.
5. The petitioner made an application on 13 th November 2006 to the
Municipal Commissioner of the Corporation seeking arrears of
provident fund, the other terminal dues and also requested the
Corporation to pay her family pension. The petitioner along with the
application had annexed the relevant documents.
6. The Corporation, from time to time, asked her to submit various
documents and the said request made by the Corporation was complied
by her and all the relevant documents, which were called for, were duly
tendered and submitted by the petitioner. Her representation seeking
family pension and other terminal dues was partly allowed by the
Municipal Commissioner of Corporation by his order dated 3 rd March
2009. However, her claim of family pension was rejected. The
petitioner thereafter made another representation dated 15 th April 2009
and submitted that the reason why her claim was rejected was not
WP5283_10.sxw
mentioned in the said order and therefore, it was contended that the
reasons for the rejection may be communicated to the petitioner.
However, her subsequent representation was not considered by the
Corporation.
7. Being aggrieved by the impugned order dated 3 rd March 2009, the
petitioner has filed this Petition under Articles 226 and 227 of the
Constitution of India.
8.
Mr. Bansode, learned Counsel appearing on behalf of the
petitioner submitted that in view of Rule 88(2) of the Mumbai Municipal
Corporation Pension Rules, 1953 (for short 'Pension Rules'), the
petitioner was entitled to receive family pension. It was submitted that
the petitioner's husband was a permanent employee and had worked for
four and half years with the Corporation. It was further submitted that
when the petitioner's husband expired, he was in the employment of the
Corporation, and therefore, in view of the said Rule, the petitioner was
entitled to receive family pension. It was also submitted that there was
no period of limitation prescribed under the Pension Rules for preferring
an application for family pension, and therefore, the Municipal
Commissioner could not have rejected the said application only on the
ground of delay caused in filing the application. It was submitted that
the petitioner had complied with all the requisitions and queries raised
WP5283_10.sxw
by the Corporation and the only ground, which was mentioned in the
order, was the delay caused in filing the application. It was, therefore,
submitted that the impugned order rejecting the claim of the petitioner
for family pension was liable to be set aside.
9. Ms Bhoir, learned Counsel appearing on behalf of the Corporation
submitted that the petitioner had filed application for family pension
after a lapse of 20 years. It was submitted that if the Statute does not
provide for a period of limitation then in that event, the application has
to be filed within a reasonable period of time. It was further submitted
that the Commissioner, therefore, has rightly rejected her application for
family pension on account of inordinate and unexplained delay of 20
years in filing the application.
10. We have given our anxious consideration to the submissions made
by the learned Counsel appearing on behalf of the petitioner and the
respondents. In the present case, the petitioner's husband was a
permanent employee of the Corporation when he expired. He had put in
four and half years service at the time of his death. The Pension Rules
are admittedly applicable to the permanent and temporary employees of
the Corporation. Section-XII contains Revised Family Pension Scheme.
Rule 88(1) lays down that the rule in Section-XII may be called Revised
Family Pension Rules (the change in name was brought into force from
WP5283_10.sxw
1st October 1977). Rule 88(2) deals with grant of family pension to the
legal heirs of an employee. Rules 88(1) and (2) read as under:
" Section XII
Revised Family Pension Scheme
(Effect to the change in name given from 1-10-1977)
88(1): The rule in this Section may be called Revised Family Pension
Rules. (The change in name comes into force from 1-10-1977).
Rule 88(2): A family pension will be admissible in the case of death
while in service or after retirement if at a time of death the retired
Municipal servant was in receipt of compensation, invalid,
compassionate, retiring or superannuation pension. In the case of
death while in service, family pension will be admissible to all
Municipal servants whether temporary or permanent who have
completed a minimum period of one year of service on the date of
death, provided that no family pension under this Scheme will be
admissible in the case of employee referred to in Sub Rule (2) of
Rule 2:
Provided further that family pension will be admissible in
case of death while in service to all Municipal employees whether
temporary or permanent who have not completed one year
continuous service on the date of death provided the deceased
Municipal employee concerned was examined by the appropriate
medical authority and declared fit by that authority for Municipal
service immediately prior to his appointment to the service or before
the date of his death.
Note: Families of Municipal employees who are / were in
receipt of compassionate Pension before this amendment comes into
force will also be entitled to Family Pension under this rule with
effect from the date of this amendment comes into force."
11. Perusal of the said Rules clearly reveals that the petitioner was
eligible to claim family pension since the petitioner's husband was a
permanent employee, and secondly, at the time of his death, he was in
service of the Corporation. Rule 88(2) mentions that the family pension
under the said Scheme would not be applicable to the employees
referred to in Sub-Rule (2) of Rule 2. In this context, it would be
WP5283_10.sxw
relevant to take into consideration the said Sub-Rule (2) of Rule 2,
which reads as under:
"2(2) Unless in any case it be otherwise distinctly provided for by
or under these rules, these rules do not apply to -
(a) Municipal servants on daily wages :
(b) Municipal servants whose time is not exclusively devoted
to the duties of their offices :
(c) Government servants in Municipal employ; and
(d) Municipal servants subscribing to any contributory
Provident Fund or qualifying or qualified for the benefit of the
Pension rules of any other Public Body."
12. Perusal of Rule 2(2) indicates that the case of the petitioner's
husband would not fall under the prohibited categories referred to in
Rule 2(2). On a conjoint reading of Rule 88(2) and Rule 2(2), it is
abundantly clear that the petitioner was eligible and entitled to claim
family pension under the said Rules.
13. It is an admitted position that the petitioner immediately did not
make an application for family pension and there was a delay of over 20
years in applying for the family pension. In the impugned order, the
Municipal Commissioner rejected her application only on the ground of
inordinate delay caused in filing the application. Perusal of the Pension
Rules indicates that there is no provision prescribing limitation for filing
an application for pension or family pension. That being the position,
the Commissioner could not have rejected her application only on the
ground of inordinate delay in filing the application.
WP5283_10.sxw
14. Hence, in our view, the Municipal Commissioner has committed
an error of law, which is apparent on the face of record, and therefore,
the impugned order will have to be set aside and quashed.
15. The fact remains that the petitioner, though she was eligible to
apply for family pension, did not file the application till 2006 and only
thereafter her application was processed. That being the position, in our
view, the petitioner would not be entitled to claim family pension prior
to the date on which the application was made by her. The petitioner,
therefore, would be entitled to claim family pension from the date of her
application dated 13th November 2006 and not from the date on which
she became eligible to receive family pension.
16. We, therefore, direct the Municipal Commissioner and the
Competent Authority to fix her family pension in accordance with the
Pension Rules and pay her family pension with effect from 13 th
November 2006. The respondents shall fix family pension of the
petitioner within a period of twelve weeks from today and pay the
arrears within eight weeks thereafter. The Petition accordingly is
allowed in terms of prayer clauses (a) and (b).
(R. G. KETKAR, J.) (V. M. KANADE, J.)
Minal Parab 8/8
