Bombay High Court
Union Of India,Ministry Of ... vs Smt.Vimal Chandrashekhar Dalal ... on 8 August, 2016
Bench: B.P. Dharmadhikari
Judgment. wp3285.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3285 OF 2003.
1. Union of India,
Ministry of Finance, New Delhi,
through Secretary M/o. Finance
New Delhi/
2. Commissioner of Income Tax-I,
Nagpur. ..... PETITIONERS.
VERSUS
1. Smt. Vimal w/o Chandrashekhar Dalal
(Dead).
2. Swapnil s/o Chandrashekhar Dalal,
Minor through his natural Guardian
/Next Friend r/o. Shri R.S. Kumbhare,
aged major, 144, Dattatrey Nagar,
Behind Sakkardara Park,
Nagpur - 24.
3. Central Administrative Tribunal,
C.G.O. Complex, C-Wing, Seminary
Hills, Nagpur. ..... RESPONDENTS.
--------------------------
Ms. M. R. Chandurkar, Advocate for the Petitioners.
Shri D.A. Sonwane, Advocate for Respondent No.2.
None for Respondent No.3- Served.
--------------------------
Judgment. wp3285.03
CORAM : B. P. DHARMADHIKARI
& KUM. INDIRA JAIN,
JJ.
DATE : AUGUST 08, 2016.
ORAL JUDGMENT : (Per : B.P. Dharmadhikari, J.)
Petitioners i.e. Union of India and Commissioner of
Income Tax-I, Nagpur are before this Court questioning the judgment
dated 27.09.2002 delivered by the Central Administrative Tribunal
at Nagpur in Original Application No. 2245/2000. By the said
judgment, the Central Administrative Tribunal has shown leniency
and directed the petitioners - employer to treat resignation of
deceased C.S. Dalal, as voluntary retirement for grant of or purpose
of pensionary benefit/family pension from 28.08.1996 i.e. from the
date of his resignation. Arrears were accordingly directed to be paid.
2. This Court while issuing Rule in the matter on 01.12.2003
refused interim relief, but, release of any benefit to respondent nos. 1
and 2 was made subject to result of the Writ Petition. Ms.
Chandurkar, learned Counsel for the petitioners has stated that
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mother - respondent no.1 expired some time in the year 2003, and
her son respondent no.2 then a minor, thereafter never approached
demanding payment.
3. Ms. Chandurkar, learned Counsel submits that the
deceased C.S. Dalal joined employment on 21.12.1970 and was
lastly working as Upper Division Clerk. He submitted resignation on
28.06.1996 and it was accepted on 24.01.1997. He expired
thereafter on 03.02.1998. His widow and minor son Swapnil then
filed proceedings before the Central Administrative Tribunal vide
Original Application No. 2245/2000 and impugned order has been
passed in it. She invites attention to Rule 26 of the Pension Rules
applicable to the establishment of petitioner no.2 to urge that
resignation results in forfeiture of entire past service and as such no
pension or any other benefit on that count could have been ordered
to be released. She further contends that circumstances which could
have warranted showing some mercy or sympathy, are also not
brought on record by the widow or minor son.
4. She points out the judgment looked into by the Central
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Administrative Tribunal in case of D.S. Nakara and others .vrs.
Union of India (AIR 1983 SC 130) and later judgment reported in
case of M/s. J.K. Cotton Spg. & Wvg. Mills .vrs. State of U.P. and
others (AIR 1990 SC 1808), are not at all relevant. The Division
Bench judgment of this Court reported in case of Shaila D.
Varekar .vrs. State of Maharashtra and another (1999 II CLR
282), which permits clubbing of earlier service with later service of
an employee has again got no bearing on the controversy.
5. Shri Sonwane, learned Counsel appearing on behalf of
respondent no.2 submits that records reveal that the deceased C.S.
Dalal was remaining absent frequently. Department claims that he
was absent for about 407 days between 18.07.1995 to 28.08.1996.
He expired on 03.02.1998. Thus, an employee who had put in about
27 years of service, submitted resignation voluntarily and this
conduct itself according to Shri Sonwane, learned Counsel is
abnormal. He further submits that his widow Vimal also expired in
the year 2003 and at that time son Swapnil, was only 16 years old.
Said son therefore, might not have taken steps to recover the
amounts due to the deceased C.S. Dalal, or then to his mother. He
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submits that this Court in its extra ordinary jurisdiction should not
intervene when after appreciating the facts, the Central
Administrative Tribunal has shown some mercy.
6. Judgment of Hon'ble Apex Court in case of D.S. Nakara
.vrs. Union of India, (supra), considers challenge to fixation of a date
for conferment of benefits of revised pension determination formula.
Said judgment holds that pension is not bounty, but, a right of an
employee. In M/s. J.K. Cotton Spg. & Wvg. Mills Co. Ltd. .vrs. State of
U.P. (supra), the Hon'ble Supreme Court has considered the
definition of word "retrenchment" in Section 2(s) of the Industrial
Disputes Act and held that when employer terminates services by
accepting voluntary resignation, it does not constitute retrenchment.
Thus, this judgment deals with technical aspect of the definition of
concept of "retrenchment".
7. Judgment of Division Bench in case of Shaila D.
Varerkar .vrs. State of Maharashtra and another (supra), shows that
petitioner joined a college and retired on 07.01.1987. By circular
dated 16.11.1996, Maharashtra Civil Services (Pension) Rules, 1982
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were made applicable to that college w.e.f. 01.04.1995. She claimed
pension. Division Bench has looked into the judgment in case of D.S.
Nakara (supra), and allowed the petition clarifying that pensionary
benefits would be payable w.e.f. 01.04.1995.
8. Thus, this judgment only shows that entitlement to
pension cannot be displaced lightly. Here petitioners have got a rule
which specifically forfeits past service in case of resignation. The
Central Administrative Tribunal was alive to this situation and after
considering all these facts in paragraph no.6, it has been observed
that exercise which it was ordering would be a difficult proposition
to accept in normal circumstances, but, in facts before it, it felt that a
sympathetic view was necessary. We cannot in this jurisdiction, in
above facts hold that the Central Administrative Tribunal was
unjustified in holding that a sympathetic approach was necessary.
9. Though no medical grounds or any illness suffered by the
deceased C.S. Dalal has been brought on record, facts itself
demonstrate that person who had put in about 26 years of service,
resigned suddenly. The employer has not come up with a case that it
Judgment. wp3285.03
wanted to proceed departmentally against him and to avoid those
proceedings, he submitted resignation.
10. In this situation, in extra ordinary jurisdiction, we are not
inclined to interfere with the view taken by the Central
Administrative Tribunal. Writ Petition is dismissed. No costs.
JUDGE JUDGE
Rgd.
Judgment. wp3285.03
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