Bombay High Court
Suman Shivaji Dolas vs Through It'S Executive Officer on 28 November, 2013
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 6594 OF 2012
Suman Shivaji Dolas
Age : 60 years, Occu. Household,
R/o. Arangaon, Meharabad,
Tal, & Dist. Ahmednagar. ... PETITIONER
VERSUS
Ahmednagar Zilla Parishad,
Ahmednagar.
(Through it's Executive Officer). ... RESPONDENT
...
Mr. Parag Vijay Barde, Advocate for the Petitioner.
Mr.S.T.Shelke, Advocte for the Respondent.
...
CORAM : RAVINDRA V. GHUGE, J.
DATE : 28th November, 2013.
PER COURT :
1 Heard Shri P.V.Barde, learned counsel for the Petitioner and
Shri S.T.Shelke, learned counsel for the Respondent.
2 The Petitioner is wife of deceased employee - Shivaji Dolas.
3 The deceased joined employment on 7th April, 1967 as a
Mixer Attendant with the Respondent. While on duty, the deceased
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suffered an accident on 23rd October, 1967 resulting into amputation of his
right hand wrist. The Respondent paid him compensation and continued
him by giving an alternate job of oilman. The deceased performed his
duties as an oilman till 1992.
4 According to the Petitioner, in 1990, after attaining the age of
55, he was referred to the medical board, which found him medially unfit
for work. The deceased retired from services due to such unfit
certification by the Medial Authorities.
The deceased demanded medical pensionary benefits,
which are more than the normal pensionary benefits available to an
employee under the Maharashtra Civil Services (Pension) Rules, 1982.
Since the same was not given, the deceased filed Complaint (ULP) No.
148 of 1998 before the Industrial Court, at Ahmednagar.
6 The said complaint was dismissed by an order dated 9th
November, 2010, which was questioned before this Court in Writ Petition
No.3770 of 2011 by the Petitioner herself since the husband of the
Petitioner died on 25th October, 2004.
7 This Court while dealing with the above said challenge, has
recorded the submissions of the Petitioner in paragraph Nos.3 and 4 of its
order dated 31st January, 2012, which are as under:
"3 Mr.Barde, learned Counsel for the original
employee ( husband of petitioner Suman) has placed
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before me communication dated 20.12.1990 by the
Executive Engineer, Zilla Parishad, and consequent
thereupon, on 25th March, 1991, Shivaji D.Dolas
(original petitioner) was examined and the report of the
Reader, Head of the Department, illustrate, said
Shivaji is unfit to do the job of Oilman.
4 According to learned Counsel, the retirement of
1992, is consequent upon such medical examination.
This should have been considered by the authorities.
The case of the petitioner squarely comes within the
bracket of Rule 62 in Chapter (VII) of the Maharashtra
Civil Services (Pension) Rules, 1982, which provides
classes of pension and conditions governing their
grant. In Rule 62 sub-class (3) invalid pension is
attributed and, according to learned Counsel, the
petitioner was eligible to seek a claim under invalid
pension. The retiral benefits extended to him are like
regular employee retiring from service or on voluntary
basis."
8 This Court therefore, disposed of the writ petition with a
direction to the Industrial Court, Ahmednagar to decide Complaint (ULP)
No.148 of 1998 in light of the observations made in paragraph Nos.3 and
4 of its order.
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9 The Industrial Court, Ahmednagar considered Complaint
(ULP) No.148 of 1998 and vide its judgment and order dated 22nd June,
2012, rejected the complaint on two counts. Firstly, that the deceased
was not entitled to the medical pensionary benefits and secondly, that the
complaint was barred by limitation. It is this judgment that has been
impugned by the Petitioner in this petition.
10 Shri Barde, learned counsel for the Petitioner further
contends that the learned Industrial Court has failed in its duties in view of
the clear directions given by this Court in its earlier order in Writ Petition
No.3770 of 2011. According to him, the oral and documentary evidence
placed before the Court has not been considered in its proper
perspective. The medically unfit certificate given by the Medical Board is
not considered. There is a nexus on medical grounds between the
accident and the retirement of the deceased. He, therefore, submitted
that the retirement of the deceased has to be logically taken to have been
caused by the accident.
11 Shri Shelke, learned counsel for the Respondent disputes
the submissions of the Petitioner. He states that after the accident dated
23rd October, 1967, the deceased lost a portion of his right hand from the
wrist. As such his right hand lost its earning capacity to that extent.
According to him, the Respondent was magnanimous in giving an
alternate job to the deceased who continued to do the said job after
recovery till April 1992, which is a period of almost 24 years. He further
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states that having lost that portion of the right hand, it is unacceptable that
certain other physical deformities have crept in on account of the said
accident. He further states that the deceased had no difficulty in working
till 1992. He disputes that a medically unfit certificate was given by the
Medical Board and contends that no such certificate was before the
Industrial Court, Ahmednagar.
12 Shri Shelke, learned counsel for the Respondent has drawn
my attention to the analysis of the evidence of the Petitioner duly
considered by the Industrial Court in paragraph No.8 of the impugned
judgment. He states that it has come on record through the said evidence
that the deceased did not opt for retirement on account of being medically
unfit, but had sought such a retirement due to domestic problems.
13 With the assistance of the learned Advocates, I have gone
through the impugned judgment. The duty cast on the Industrial Court
through an order of this Court dated 31st January, 2012 in Writ Petition No.
3770 of 2011 was to find out as to whether Rule 62 in Chapter (VII) of the
Maharashtra Civil Services (Pension) Rules, 1982 covered the case of the
deceased and as to whether it could be said that his case fell within Rule
62 sub-clause (3) according medical pensionary benefits. It is clearly
seen from the impugned judgment that this has been done and the
Industrial Court has concluded that the case of the deceased does not fall
under the said Rules.
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14 Taking an overall view of the matter, I find that the Industrial
Court, Ahmednagar has not committed any error in drawing the
conclusions, which are on page Nos.9 and 15 of the impugned judgment.
So also, I do not find that the nature of accident and the loss of a portion
of the right hand owing to the accident dated 23rd October, 1967 can be
said to be a cause and effect of the retirement of deceased in April 1992.
I, therefore, find that there is no perversity in the impugned judgment.
15 In the result, the petition is devoid of merit and the same is
accordingly dismissed with no order as to costs.
[ RAVINDRA V. GHUGE, J. ]
ndm
