Gujarat High Court

Mohammad Sakirbhai Abdulrahim ... vs Municipal Commissioner on 30 June, 2022

Bench: Biren Vaishnav

     C/SCA/10948/2019                              ORDER DATED: 30/06/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10948 of 2019

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          MOHAMMAD SAKIRBHAI ABDULRAHIM GODHRAWALA
                           Versus
                  MUNICIPAL COMMISSIONER
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Appearance:
MR DILIP B RANA(691) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 30/06/2022

                                ORAL ORDER

1 Heard Mr.Dilip B. Rana, learned advocate for the petitioner and

Mr. H.S.Munshaw, learned advocate for the respondents.

2 Present petition has been filed by an employee, who retired from

service on 31.12.2005 for a direction that the respondent - Corporation

pay the retiral benefits to the petitioner.

3 Facts in brief would indicate that the petitioner was appointed on

01.12.1970 as Compounder. Due to initiation of criminal proceedings,

the petitioner was suspended on 19.11.1982. Departmental proceedings

were initiated by issuance of charge sheet dated 08.03.1983. The

departmental proceedings concluded on 17.02.2001 and after due

procedure, the services of the petitioner were put to an end by an order of

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dismissal dated 04.01.2002.

3.1 A statutory appeal was preferred against the order of dismissal and

the Committee by its order dated 08.06.2005 quashed the order of

dismissal from service modifying the order of penalty and reinstating the

petitioner. In the meantime, the petitioner was also acquitted in the

criminal proceedings. The petitioner was reinstated in service on

28.06.2005. The Deputy Municipal Commissioner on 13.09.2005, passed

an order of recovery of Rs.9,631/- from the petitioner. The petitioner

joined his duties and then superannuated on 31.12.2005. He made a

representation for being paid terminal benefits. On not being so paid his

benefits, he approached this Court by filing Special Civil Application No.

4222 of 2006 with a prayer to quash the orders of recovery and the

modified order of penalty and for a further direction that he be paid

pensionary benefits.

3.2 By an order dated 28.09.2016, the Court, without disturbing the

order of the Standing Committee clarified that the period of suspension

from 19.11.1982 to 03.01.2002 shall be calculated for the purposes of

calculating qualifying service. The Court, further held that the petitioner

can be said to be in continuous service from 19.09.1978 to 31.12.2005,

the day on which he attained superannuation.

3.3 The case of the petitioner is that the Corporation did not comply

with the order, and therefore, a representation was made from time to

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time. The petitioner has been paid gratuity amount of Rs.1,72,228/- and

amount of Leave Encashment of Rs.2,642/-. The petitioner has prayed for

the following benefits which read as under:

"3.19 The petitioner submits that the petitioner is entitled for the following retiral benefits which are not paid till date; (I) The petitioner is entitled to get pension as the petitioner joined in the pension scheme declared by the government on 01.01.1983 considering the continuity of service from 19.09.1978 to 31.12.2005. But, till date no decision is taken for fixation of pension payable to the petitioner. Hence, the respondent authority be directed to fix pension and to pay arrears with interest at the earliest, considering the date of retirement i.e. 31.12.2005.

(ii) the amount of provident fund is not paid.

(iii) as per the office order dated 14.09.2005, the petitioner was considered as pharmacist but the amount of gratuity is calculated as if the petitioner is Junior Pharmacist. The respondent authority wrongly considered the pay scale of Rs.5000-8000 though the petitioner is entitled for pay scale of Rs.6000-9000, hence the difference is payable to the petitioner.

(iv) the petitioner is not paid the benefits of 5th Pay Commission which was given to other employees from 01.01.1996 and

(v) the petitioner is entitled for difference of pay for the salary of October to December 2005 as the pay scale was considered as Rs.4,000 - 6000 as Junior Pharmacist but actually the petitioner is entitled for the pay scale of Rs.6000-9000."

3.4 A contempt petition filed was disposed of with an observation that

the petitioner can take appropriate proceedings.

4 Mr.Dilip B. Rana, learned advocate for the petitioner, would

submit that the petitioner is entitled to the benefit of the pension scheme

and paid pension. During his period of suspension from 19.11.1982, the

stand of the respondent that he had not opted for pension and had availed

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the benefit of C.P.F is misconceived, inasmuch as, it was clearly stated in

the opinion of the Labour Officer dated 23.11.2006 that the petitioner was

under suspension when the pension scheme was implemented on

01.01.1983 and since he had not got any opportunity to opt, he should be

paid pensionary benefits.

5 Mr.H.S.Munshaw, learned counsel for the respondent -

Corporation, would rely on the affidavit-in-reply and submit that once

having not opted for pension scheme, it is not open for the petitioner to

now ask for the benefits of pension when he had not opted for the same.

The question of delay also would arise as the petition is filed 13 years

after retirement. Reliance was placed by Mr.Munshaw, learned counsel,

on an order passed by this Court in Special Civil Application No. 16601

of 2010 where the Court had opined that once having enjoyed the benefits

of the CPF Scheme, it is not open for an incumbent to opt for pension.

Mr.Munshaw, learned advocate, would also rely on an order passed in

Special Civil Application No. 1252 of 2015.

6 Considering the submissions made by the learned counsel for the

respective parties, it would be worthwhile to reproduce the relevant

portion of the order passed by this Court in Special Civil Application No.

4222 of 2006. Paras 6 to 13 and 17 of the order would read as under:

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"6 Before the appeal could be taken up for hearing by the appellate authority, the writ applicant came to be acquitted by the trial Court from the criminal prosecution vide judgment and order dated 28th February 2005. The Standing Committee of the Corporation being the appellate authority partly allowed the appeal in the following terms: (1) The writ applicant was ordered to be reinstated in service, but was placed in the lowest of the payscale. (2) The suspension period was not treated to be as on duty. (3) The period between the date of the order of dismissal and the reinstatement was treated as on leave without pay.

7 On being reinstated in service, the writ applicant resumed on 14th September 2005. He retired thereafter on 31st December 2005 on attaining the age of superannuation.

8 Being dissatisfied with the order passed by the Standing Committee, the writ applicant has come up with this writ application.

9 It appears that after the order was passed by the appellate authority, the Deputy Municipal Commissioner passed an order dated 13th September 2005 directing that an amount of Rs.9,631.46 be recovered from the salary of the writ applicant.

10 The writ applicant is mainly concerned with the stance of the Corporation that the period of suspension i.e. between 19th November 1982 and 3rd January 2002 would not be considered for the purpose of calculating the qualifying service.

11 Mr. Rana, the learned counsel appearing for the writ applicant vehemently submitted that the Corporation has framed its own regulations governing the disciplinary inquiry, suspension, etc. He submits that in the regulations framed by the Corporation, the only aspect which the competent authority is required to decide is whether the period of suspension should be treated as one spent on duty or not. The regulations are absolutely silent so far as the qualifying service of an employee under suspension is concerned. He would submit that the writ applicant even while he was under suspension could be said to be in service

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of the Corporation. The service would not come to an end by mere suspension. He would submit that the services under the regulations can be brought to an end only by a defined punishment like compulsory retirement, dismissal or removal after the departmental inquiry. He would submit that the suspension period, in absence of it being a punishment by itself, could not have been treated as a breakinservice, in absence of the rules to the contrary. I inquired with Mr. Rana, what was the basis of his apprehension as regards the above because the appellate authority has not said a word whether the period of suspension could be calculated for the purpose of qualifying the service or not. In response to the query raised by this Court, Mr. Rana invited my attention to the averments made in para 6 of the affidavitinreply filed on behalf of the respondent No.1 wherein the following has been stated:

"6 .... It was also further decided that his suspension period will be considered suspension from the services and further it was also decided that his period from dismissal and he resumed the service a fresh, will be consider, leave without pay etc."

12 It appears on plain reading of the last part of the para 6 of the reply that the Corporation considered the reinstatement of the writ applicant in service as a fresh appointment. Considering so, the stance of the Corporation is that the writ applicant would now not be entitled for any pensionary benefit, because he could not have been said to have put in the minimum qualifying service.

13 The stance of the Corporation appears to be absolutely contrary to law and its own regulations. The Regulation No.20 (C)(1) reads as under: "20(C)(1) When a servant who has been dismissed, removal or suspended is reinstated the authority competent to order the reinstatement shall consider and make a specific order: (a) regarding the pay and allowances to be paid to the servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty."

XXX XXX XXX

17 In view of the above, without disturbing the order passed

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by the Standing Committee of the Corporation being the appellate authority, this writ application is disposed of with a clarification that the period of suspension between 19th November 1982 to 3rd January 2002 shall be calculated for the purpose of calculating the qualifying service. The writ applicant could be said to have put in one continuous service starting from 19th September 1978 till 31st December 2005 i.e. the date on which he attained superannuation. The retiral benefits shall be calculated within a period of eight weeks from the date of receipt of this order and be paid to the writ applicant accordingly. The stance of the Corporation, as contained in para 6 of its affidavitinreply, is not approved. The reinstatement of the writ applicant in service on 15th August 2005 shall not be treated as a fresh appointment. In fact, it would not be appropriate to use the word 'reinstatement' because once the suspension period comes to an end and if the employee is permitted to resume his service, that does not amount to reinstatement in service, because he is deemed to be in service even during the period of suspension. Direct service is permitted."

6.1 Reading para 17, it is very clear that the Court while disposing of

the petition, had in clear terms observed that the writ applicant can be

said to have to be in continuous service starting from 19.09.1978 to

31.12.2005 for the purposes of retiral benefits. This shall be considered as

qualifying service including the period during which he was suspended.

7 Reading these observations in light of the opinion of the Labour

Officer, it is not open for the respondent - Corporation now to deny the

petitioner the benefits of pension and other terminal benefits based on a

statement in the reply that the petitioner has been paid CPF amount of

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Rs.2,017/- that is a statement which is denied by the petitioner in the

rejoinder. Delay also cannot be attributed to the petitioner whose petition