Sanyuktaben Jagdish M Prasad And ... vs State Of Gujarat
2022 Latest Caselaw 8158 Guj

    C/SCA/2361/2021                               CAV JUDGMENT DATED: 20/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 2361 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== SANYUKTABEN JAGDISH M PRASAD AND DT/O BHALCHANDRA RAVAL Versus STATE OF GUJARAT ========================================================== Appearance:

KUSH R VYAS(7441) for the Petitioner(s) No. 1,2 MR PRASAD N BHATT(5550) for the Petitioner(s) No. 1,2 MR. UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1,2 NOTICE SERVED for the Respondent(s) No. 3,4,5,6

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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 20/09/2022

CAV JUDGMENT

1 Rule returnable. Mr.Utkarsh Sharma, learned AGP,

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waives service of notice of rule on behalf of the

respondent - State.

2 Multiple prayers have been made in this petition,

essentially the prayers of the petitioners is that the

respondents be directed to finalize the Family Pension of

the petitioner. Further direction is sought that the said

pension amount be paid after deducting Rs.1,38,207/-

deposited by the Government in this Court under an

order dated 30.09.2009 and 08.10.2009. The case of the

petitioners further is that salary of the deceased

Dr.Jagdish M. Prasad including gratuity and retirement

benefits from 01.01.1996 to 28.07.2007 be paid to the

petitioner No.2 and the remaining 1/3rd share to the

respondent No.6 on the basic pay-scale of Rs.8,000-

13,500/- effective from 01.01.1996. By way of an

amended petition, prayers have been made to quash and

set aside the orders dated 19.04.2022 and 05.05.2022.

3        Facts in brief are as under:






  C/SCA/2361/2021                                CAV JUDGMENT DATED: 20/09/2022




3.1 The            petitioner   No.1,       married     the        deceased

Dr.Jagdish M Prasad on 11.12.1970. A daughter Shilpa,

petitioner No.2, was born out of this wedlock. The

marriage subsisted till Dr.Jagdish M. Prasad died on

28.07.2007.

3.2 Dr.Prasad was working as a Government Medical

Officer, who after completion of 30 years of service

retired on 30.1.2004. On his death, a dispute arose as to

the claim of Family Pension because one maid servant

named, Dhaklu, mother of respondent No.6, filed Special

Civil Application No. 5022 of 2008 praying to get family

pension. Dr.Jagdhish Prasad too before his death had filed

Special Civil Application No. 7265 of 2004 praying for

payment of terminal benefits. Both these petitions were

disposed of after the petitioners were brought on record

as heirs by an order dated 24.12.2013, by which

Dhakluben and the petitioners were relegated to the

competent Civil Court to decide the entitlement of family

pension. In the proceedings, an interim order was passed

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in SCA No. 5022 of 2008 directing the respondents to

deposit an amount of Rs. 1,38,207/- in the registry of this

Court.

3.3 The Civil Suit was disposed of and a claim of the

petitioners was allowed and it was held that the

petitioner No.1 was the only legally wedded wife of

Dr.Jagdish Prasad and was therefore entitled to family

pension. Petitioner No.2 was declared as a daughter and

the respondent No.6, Gautam, was declared as a son

under Sec.16 of the Hindu Marriage Act.

3.4 The petitioner No.1 therefore sent an application to

the respondents in the year 2019 and 2020 to disburse

the amount of family pension with other dues. The

petitioner No.2, made an application to get her share

(2/3rd of the pending dues). No decision was taken on

these applications. On 03.11.2020, the Commissioner of

Health & Medical Service addressed a letter to the Chief

District Health Officer, District Panchayat, Bhavnagar, to

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finalize the pension case.

3.5 It may be noted that in the year 2004, certain

departmental proceedings were initiated against

Dr.Prasad, which had led to him filing Special Civil

Application No. 7265 of 2004 on the ground that he is not

being paid retiral benefits. On 14.02.2005, the Court

passed an interim order to place on record the status of

pending inquiries. On 19.10.2005, further order was

passed, wherein it was observed that as far as

departmental inquiry in respect to alleged absentism of

the petitioner for a period between 1993 to 1996 and

1998 till the date of superannuation is concerned, no

notice has been served or no departmental proceedings

are initiated or contemplated. These aspect had remain

uncontroverted. By way of an interim relief, the

respondents were directed to complete the formalities for

provisional pension and continue to pay provisional

pension as per rules till the final disposal of the petition.

Since Dr.Prasad died on 28.07.2007, the provisional

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pension that was being paid to him was stopped. Hence

those petitions which have been referred to in the earlier

part of the order.

3.6 Pending this petition, the Court passed an order on

01.04.2022, in response to a communication dated

19.03.2022 where the department opined that unless and

until a decision is taken with regard to break in service of

the petitioner's husband for a period of nine years, five

months and sixteen days, the issue of family pension

cannot be resolved. Subsequently, pending this petition,

the decisions have been taken which are challenged by

way of amendments. By a communication dated

19.04.2022, the State has held that the period of absence

of the deceased of nine years, five months and sixteen

days in two phases from 01.07.1993 to 13.02.1997 and

02.01.1998 to 31.01.2004 shall be treated as break in

service under Rule 34 of the Gujarat Civil Services

(Pension) Rules, 2002. A subsequent order dated

05.05.2022 was passed where it was observed that for the

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purposes of pensionable service, on deduction of nine

years, five months and sixteen days, pension which was

otherwise computed counting 34 years, three months and

twenty three days of pensionable service was reduced to

24 years, 10 months and 07 days. Further as a result of

such deduction of the period, excess amount paid to

Dr.Prasad of Rs.44,728/- towards pension and gratuity

needed to be recovered. The petitioner was compelled to

file an undertaking that unless and until this amount is

paid, her pension case will not be finalized.

4 Mr.Prasad Bhatt, learned counsel for the petitioner,

would submit that the petitioner No.1 being 72 years of

age, on the death of her husband is entitled to family

pension as finally decreed by the Civil Court.

4.1 Mr.Bhatt, learned counsel, would further submit that

after an interim orders passed by this Court in Special

Civil Application No. 7265 of 2004, the State had filed an

affidavit before the Hon'ble Supreme Court categorically

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stating that the departmental proceedings against

Dr.Prasad were dropped. In view of this unqualified

statement made before the Hon'ble Supreme Court, on

the date of his death no departmental proceedings were

pending and therefore, the order dated 19.04.2022

deducting nine years, five months and sixteen days from

pensionable service is bad. The order of 05.05.2022

subsequently ordering recovery of amount of Rs.44,000/-

by revising the order dated 27.12.2005 by which

pensionary benefits was sanctioned is bad.

4.2 Mr.Prasad, learned counsel, during the course of his

submissions relied on the following decisions:

(1) In the case of Deokinandan Prasad vs. The

State of Bihar & Anr., reported in AIR 1971 SC

1409(1).

(2) In the case of Lilaben Digambar Navre vs.

State of Gujarat & Ors., rendered in Special Civil

Application No. 15690 of 2011 dated 13.06.2013.

(3) In the case of Basudeo Tiwary vs. Sido

C/SCA/2361/2021 CAV JUDGMENT DATED: 20/09/2022

Kanhu University & ors., reported in AIR 1998

SC 3261.

(4) In the case of T.P.Viradiya vs. State of

Gujarat & ors., rendered in Special Civil

Application No. 16957 of 2004.

(5) In the case of S.D.Chauhan vs. Narmada

Water Resources Department & Ors., rendered

in Special Civil Application No. 1212 of 1995 dated

12.09.2016.

(6) In the case of D.D.Tewari (D) Thr. Lrs vs.

Uttar Haryana Bijli Vitran Nigam Ltd., & Ors.,

reported in AIR 2014 SC 2861.

(7) In the case of Hemantkumar Chitranjan

Raval vs. State of Gujarat., rendered in Special

Civil Application No. 5580 of 2021 dated 25.03.2022.

(8) In the case of Hirabhai Bhikanrao

Deshmukh vs. State of Maharashtra & Anr.,

rendered by the Hon'ble Bombay High Court in Writ

Petition No. 836 of 1984.

(9) In the case of Kaushalya Devi vs. The State

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of Bihar through the Principal Secretary, Rural

Development Department, Government of

Bihar, Patna & Ors., rendered by the Hon'ble

Patna High Court in Civil Writ Jurisdiction Case No.

3349 of 2018 dated 12.09.2019.

(10) In the case of Ravjibhai Khimjibhai Ninama

vs. State of Gujarat, rendered in Special Civil

Application No. 560 of 2019 dated 05.07.2022.

(11) In the case of Mahesh Keshavlal Joshi vs.

State of Gujarat., rendered by this Court in Special

Civil Application No. 2247 of 2019 dated 21.07.2022.

(12) In the case of Lalaram & Ors vs. Jaipur

Development Authority & Anr., reported in 2015

AIR SCW 6849.

(13) In the case of Bhagwandas Gopaldas

Bhagchandani vs. Ahmedabad Municipal

Corporation, rendered by this Court in Special Civil

Application No. 15420 of 2011 and allied matters.

(14) In the case of Hradesh Kumar Sharma vs.

Institute of Plasma Research., rendered by this

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Court in Special Civil Application NO. 16877 of

2020.

(15) In the case of Shivshankar Jivram pandya vs.

State of Gujarat & 2 ors., rendered by this Court

in Special Civil Application No. 9673 of 2008 dated

09.09.2019.

(16) In the case of Prem Nath Bali vs. Registrar,

High Court of Delhi., reported in AIR 2016 SC

101.

(17) In the case of Manohar Manikrao Anchule

vs. State of Maharashtra & Ors., reported in AIR

2013 SC 681.

(18) In the case of Hari Ram Maurya vs. Union of

India & Ors., rendered by the Hon'ble Supreme

Court in Civil Appeal No. 5523 of 2005.

(19) In the case of Union of India vs.

Dr.M.R.Diwan & Anr., rendered by the Delhi High

Court in W.P(C) No. 5653 of 2018 dated 12.03.2019.

(20) In the case of Shivshankar Jivram Pandya vs.

State of Gujarat & ors., rendered in Special Civil

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Application No. 9673 of 2008 dated 09.09.2019.

(21) In the case of Ilaben Natvarlal Dave vs.

State of Gujarat & Ors., rendered in Special Civil

Application No. 16812 of 2007 dated 11.10.2019.

(22) In the case of Dr.(Mrs) Gurjeewan Garewal

vs. Dr.(Mrs.) Sunitra Dash & Ors., rendered in

AIR 2004 SC 2530.

(23) In the case of Mariyaben Wd/o Mamad Umar

Sorathia vs. State of Gujarat., rendered in Special

Civil Application No. 12181 of 2015.

(24) In the case of Vijay L Mehrotra vs. State of

U.P & Ors., reported in AIR 2000 SC 3513(2).

4.3 The summary of these decisions, in the submission

of Mr.Bhatt, learned counsel, indicates that no

departmental proceedings can be initiated after the

person has retired, more so without the sanction of the

government. Additionally, no recoveries can be ordered

after several years once the pension is fixed. Such orders

are even otherwise bad on the ground of violation of

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principles of natural justice.

5 Mr.Utkarsh Sharma, learned AGP for the State,

would submit that Dr.Prasad was charge sheeted vide

letter dated 17.12.1997 for the charge of unauthorized

absence from 01.07.1993 to 13.02.1997. He was

thereafter, superannuated retrospectively with effect

from 31.01.2004. Dr.Prasad was sanctioned provisional

pension on 27.12.2005. He died on 28.07.2007 and the

provisional pension was stopped. Taking the Court

through the additional affidavit, Mr.Sharma, learned AGP,

would submit that the prayer of the petitioner to deduct

Rs.1,38,207/- and pay other pensionary benefits is

misconceived. By the impugned orders, the period of nine

years, five months and sixteen days has not been

regularized and is considered as break in service. It is not

an order imposing punishment. In fact, the petitioner is

lucky that the departmental proceedings have abated.

Break in service in any circumstances has to be

considered for the purpose of regularization by the

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department and the department has not considered it fit

to regularize the break. Since that period is not

regularized, over payment of Rs.44,728/- has to be

recovered. Though the Charge sheet may not have

culminated into punishment, it is always open for the

department to pass the orders.

6 Considering the submissions made by the learned

counsels for the respective parties, reiteration of facts

need not be done. It is clear that the petitioner No.1 and

petitioner No.2 and the respondent No.6, have been held

as entitled to the dues of the deceased Dr.Jagdish Prasad.

In the interim orders, in Special Civil Application No.

7256 of 2004, directions were given to finalize the

pension case of Dr.Prasad, which were so done. The

respondents had on 27.12.2005, based on the pay-scale of

Rs.3,600-4450/-, finalized the pension case of the

deceased and sanctioned the amounts. It was an order of

provisional pension. No departmental proceedings were

initiated, however, as the affidavit now indicates, a

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charge sheet was issued to Dr.Prasad for absence for the

period from 1993 to 1997. When certain proceedings

were pending before the Hon'ble Supreme Court at the

hands of the petitioners, which were disposed of on

31.08.2015, the State had filed an affidavit before the

Hon'ble Supreme Court that the departmental

proceedings were dropped. Even otherwise, as is evident

from the affidavit-in-reply in the present proceedings, the

State has admitted that the departmental proceedings

had abated.

6.1 Obviously therefore, once for the period of absence

the departmental proceedings abated on the death of

Dr.Prasad in the year 2007, after 15 years of his death, it

was not open for the authorities to treat this period of

nine years, five months and sixteen days as break in

service under Rule 34(2) of the Pension Rules, 2002. By a

subsequent order for a pension fixed in the year 2005, 17

years thereafter recovery of Rs.44,728/- is ordered before

the pension case is finalized. There is no rational behind

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the authorities passing these orders 15 and 17 years

respectively after the death and fixation of provisional

pension of the deceased Dr.Prasad.

6.2 Mr.Bhatt, learned counsel, has cited the judgement

of this Court as well as the Hon'ble Supreme Court and it

is a settled proposition of law that no recoveries can be

made after several years and the illegality becomes more

glaring when it is done in case of pensionary benefits

from a deceased government employee.

7 On all these counts therefore, the orders dated

19.04.2022 and 05.05.2022 are cannot be sustained.

8 The petitioner No.1, petitioner No.2 and the

respondent No.6 are entitled to 2/3 rd share respectively

of the family pension on the basis of the last pay drawn by

the deceased Dr.Jagdish Prasad as if the orders dated

19.04.2022 and 05.05.2022 were not passed. The

petitioner No.1 shall also be entitled to the disbursement

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of the amount of Rs.1,38,207/- with interest that has

accrued and deposited before this Court. She shall be

entitled to withdraw the same forthwith. Petition is

allowed. The order of payment of the family pension as

aforesaid shall be made and complied with arrears within

a period of ten weeks from the date of receipt of copy of

this order. Rule is made absolute accordingly.

(BIREN VAISHNAV, J) BIMAL