Laxmibai Uttam Potdar vs The State Of Maharashtra And ...
2016 Latest Caselaw 4530 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                     
                      BENCH AT AURANGABAD




                                             
                       WRIT PETITION No.803 OF 2016

    Laxmibai Uttam Potdar,
    Age : 55 years, Occ. Household,
    r/o. Panchal Colony, Nanded Naka,




                                            
    Udgir, Tq. Udgir, Dist. Latur                ..Petitioner

                  Vs.




                                    
    1. The State of Maharashtra,
       Through its Secretary,
                              
       Agricultural, Animal Husbandry,
       Dairy Development and Fisheries
       Department, Mantralaya, 
       Mumbai - 32
                             
    2. The Regional Dairy Development
       Officer, Aurangabad,
       Tq. and Dist. Aurangabad
      


    3. The General Manager,
   



       Government Milk Scheme,
       Parbhani                                  ..Respondents

                            --





    Mr.A.V.Patil   (Indrale),   Advocate   for   the 
    petitioner

    Mr.A.V.Deshmukh, AGP for respondent nos.1 to 3
                             --





                           CORAM : S.S. SHINDE AND
                                   SANGITRAO S. PATIL, JJ. 
                     RESERVED ON : JULY 19, 2016          
                   PRONOUNCED ON : AUGUST 08, 2016 




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    JUDGMENT (PER SANGITRAO S. PATIL, J.) :

Heard.

2. Rule. Rule made returnable forthwith.

Heard finally with consent of the parties.

3. The husband of the petitioner namely,

Uttam Dattatray Potdar (hereinafter referred to as

"the deceased Uttam") came to be appointed as a

Dairy Attendant (Class-IV) with respondent no.3

vide order dated 07.05.1975. He resumed his

duties as such on 29.05.1975. He got promoted to

the post of Junior Clerk (Class-III) vide order

dated 08.05.1984 and actually resumed his duties

as such on 14.05.1984. He was continuously serving

with respondent no.3. He was suffering from

Tuberculosis with Bronchitis and other associated

ailments. Due to that, he could not remain present

to perform his duties with effect from 28.10.1991

to 27.03.2008. He produced Medical Certificates

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from time to time in respect of the ailments

suffered by him, which compelled him to be absent

from duties for recovery therefrom. Ultimately, he

was found fit to resume duties and accordingly, he

resumed duties on 28.03.2008. He retired on

attaining the age of superannuation on 31.03.2008.

4. It is the case of the petitioner that

respondent no.3 ought to have prepared pension

papers of deceased Uttam well in advance prior to

the date of his attaining the age of

superannuation. However, respondent no.3 did not

prepare the pension papers and on the contrary,

avoided to do so, on one ground or another. The

deceased Uttam was subjected to financial hardship

and inconvenience. Even after his demise on

29.04.2015, respondent no.3 did not take steps to

grant family pension to the petitioner. On the

contrary, the claim of the petitioner for grant of

family pension was tried to be ignored without

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there being any satisfactory and justifiable

reason.

5. The learned Counsel for the petitioner,

on the strength of the contents of the petition as

well as the documents produced on record, submits

that the respondents are bound to take necessary

steps to grant pension to the deceased Uttam and

family pension to the petitioner as per the

provisions of the Maharashtra Civil Services

(Pension) Rules, 1982 (for short "Pension Rules").

He, therefore, prays that the respondents may be

directed to take necessary steps to grant

pensionary benefits to the deceased Uttam and

family pension to the petitioner and release the

arrears of the pensionary benefits as well as

family pension to the petitioner, at the earliest.

6. Respondent nos.1 to 3 filed reply and

opposed the petition. Relying on the contents of

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the said reply, the learned AGP submits that the

deceased Uttam unauthorisedly remained absent from

his duties continuously from 28.10.1991 to

27.03.2008 (for about 17 years). The Medical

Certificates produced by him were required to be

countersigned by the Civil Surgeon concerned.

However, he did not get the said certificates

countersigned by the Civil Surgeon concerned.

Consequently, leave could not be sanctioned in his

favour on the basis of those certificates. The

period of absence of the deceased Uttam is

required to be regularised by the Government. He

submits that had the said Medical Certificates

been countersigned by the Civil Surgeon, the

claim of the petitioner for pensionary benefits as

well as the family pension could have been

forwarded to the Accountant General. He further

submits that the name of the petitioner has not

been mentioned as a nominee of the deceased Uttam

in his Service Book. This, according to him, is

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one of the hurdles in the way of the petitioner in

getting family pension. He submits that after

regularisation of the period of absence of

deceased Uttam, his Service Book will have to be

got verified from the Pay Verification Unit,

Aurangabad and thereafter, the claim of the

petitioner for pension/family pension can be

forwarded to the Accountant General for sanction

of the said benefits. He tried to demonstrate

that it was because of the inaction on the part of

the deceased Uttam and that of the petitioner in

complying with the necessary requirements, that

there has been delay in forwarding the pension

papers of the deceased Uttam to the Accountant

General, Nagpur. He, therefore, submits that the

Writ Petition may be dismissed.

7. There is no dispute that the deceased

Uttam joined the service of respondent no.3 as a

Dairy Attendant on 29.05.1975. He got promoted to

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the post of Junior Clerk with effect from

14.05.1984. He became permanent employee of

respondent no.3. He remained absent from duties

due to his illhealth. There is a Medical

Certificate issued by the Medical Officer,

District T.B. Centre, Bidar, which has been

countersigned by the Civil Surgeon, wherein it is

mentioned that the deceased Uttam was suffering

from Tuberculosis, Bronchitis and the period of

his absence from duties for 765 days with effect

from 28.10.1991 to 30.11.1993 was absolutely

necessary for recreation of his health. Thus, the

said certificate makes it clear as to how, serious

ailments were being suffered by the deceased

Uttam. There are two more certificates produced

on record, which were issued by Dr.Arun

Daithankar, T.B. Expert and Dr.A.M.Khan, M.D.

(Medicine), respectively, issued on 26.12.2007 and

27.03.2008, respectively, wherein also, there is

specific mention of the serious ailments suffered

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by the deceased Uttam, which compelled him to

remain absent from the duties for recovery of his

health. The said certificates pertain to the

period from 09.06.1994 to 26.12.2007 and

27.12.2007 to 27.03.2008, respectively.

8. If the contents of the above-mentioned

certificates are taken into consideration, it

cannot be said that the deceased Uttam

deliberately or intentionally remained absent from

his duties without there being any compelling

reason. As seen from the certificate issued by

the Medical Officer, District T.B. Centre, Bidar,

which was countersigned by the District T.B.

Surgeon, Bidar, it is clear that the deceased

Uttam was suffering from Tuberculosis. The said

disease and other associated ailments have been

referred to in the subsequent certificates issued

by the private medical practitioners.

Countersigning of the said Medical Certificates by

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the Civil Surgeon of the District was essential

for the purpose of verifying the genuineness of

the ailments suffered by the deceased Uttam and to

confirm that his absence from duties was,

therefore, essential for his recovery from those

ailments. It is a rule of caution to get the

medical certificate countersigned from the Civil

Surgeon so that a Government Servant would not

proceed on leave without any ailment compelling

him to remain absent from the duties and seek

regularisation of his leave period on mere

production of the Medical Certificate. In the

Medical Certificate dated 26.12.2007, it was

specifically mentioned that the deceased Uttam was

suffering from Tuberculosis with Bronchitis. It

was also mentioned that he was suffering from

fever, tingling numbness in both legs, inability

to walk with paraplegia etc. In the certificate

dated 27.03.2008, it was mentioned that the

deceased Uttam was suffering from hepatitis with

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severe anemia with acute pains with fever and loss

of appetite. The ailments suffered by deceased

Uttam by themselves would have spoken for the

circumstances compelling him to remain absent from

the duties for recovery of his health. With such

obvious and self-speaking features of physical

inability of the deceased Uttam to attend the

duties, in our view, it was not compulsory

/necessary for respondent no.3 to ask the deceased

Uttam to get the said Medical Certificates

countersigned by the Civil Surgeon. There was no

reason to doubt the genuineness of the contents of

the said medical certificates considering the

actual physical health of the deceased Uttam.

9. In view of the above referred

certificates, it was not difficult for respondent

no.3 to grant necessary leave to the deceased

Uttam for the period from 28.10.1991 to

27.03.2008. The insistence on the part of

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respondent no.3 for countersigning of the said

medical certificates through the Civil Surgeon was

not reasonable and justifiable in the

circumstances of the present case.

10. As per Rule 120 of the Pension Rules,

every Head of Office shall undertake the work of

preparation of pension papers in Form 6 in respect

of Non-gazetted Government servant as well as

Gazetted Government servant, whose pay and

allowances are drawn by him on establishment

bills, two years before the date on which they are

due to retire on superannuation; or on the date on

which they proceed on leave preparatory to

retirement, whichever is earlier. In the present

case, respondent no.3 does not seem to have taken

up this exercise of preparation of pension papers

well in advance. It was necessary for respondent

no.3 to prepare the pension papers in Form 6 in

respect of the deceased Uttam so as to avoid delay

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in releasing pensionary benefits to the deceased

Uttam.

11. So far as the claim of the petitioner for

family pension is concerned, her case would be

governed by the Family Pension Scheme of 1964 as

enumerated in Rule 116 of the Pension Rules. As

per Rule 116(16)(b), the petitioner being the

widow of the deceased Uttam, would fall within the

definition of "Family" and would be entitled to

get family pension since after the demise of the

deceased Uttam. She is further entitled to get

death gratuity also. The Service Book of the

deceased Uttam shows that the petitioner has been

named as "nominee" of the deceased Uttam for

receiving benefits under the Government Employees'

Group Insurance Scheme, 1982. No other relation of

the deceased Uttam has made any claim for getting

any retiral benefits, family pension, death

gratuity etc. There is no dispute that the

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petitioner being the widow of the deceased Uttam

is entitled to get all the pensionary benefits

which were payable to the deceased Uttam.

Respondent no.3 was not justified in asking the

petitioner to produce succession certificate for

getting the retiral benefits of the deceased Uttam

or for getting the family pension as well.

12.

In the above circumstances, we are of the

considered view that the respondents shall

consider the medical certificates produced by the

deceased Uttam and on the basis of those

certificates, grant whatever leave that was

admissible to the deceased Uttam and regularise

the period of his absence from 28.10.1991 to

27.03.2008. If the need be, respondent nos.2 and 3

may move respondent no.1 for sanction of leave and

regularisation of the period of absence of the

deceased Uttam. The respondents shall further take

necessary steps to get verified the Service Book

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of the deceased Uttam from the Pay Verification

Unit, at the earliest. The respondents shall take

all necessary steps as expeditiously as possible

to enable the petitioner to get the pensionary

benefits payable to the deceased Uttam and also

the family pension payable to her.

13.

In the result, we pass the following

order :-

    (i)            The Writ Petition is allowed. 
      


    (ii)           Respondent nos.1 to 3 shall consider the 
   

Medical Certificates produced by deceased Uttam

and take necessary steps to regularise or get

regularised the absence of the deceased Uttam from

duties from 28.10.1991 to 27.03.2008.

(iii) The respondents shall take all necessary

steps as expeditiously as possible and within four

months from today to enable the petitioner to

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receive the pensionary benefits which were payable

to the deceased Uttam and also to get the family

pension since after his demise.

(iv) Rule is made absolute in the above terms.

    (v)            No costs.




                                    
    [SANGITRAO S. PATIL, J.]
                                ig        [S.S. SHINDE, J.]
                              
    kbp