Gujarat Maritime Board vs Hussain Abhabhai Kacha ( ...
2023 Latest Caselaw 2170 Guj

     C/LPA/266/2023                            ORDER DATED: 09/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 266 of 2023
                                 In
             R/SPECIAL CIVIL APPLICATION NO. 2990 of 2019
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                                  In
              R/LETTERS PATENT APPEAL NO. 266 of 2023
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                      GUJARAT MARITIME BOARD
                               Versus
                 HUSSAIN ABHABHAI KACHA ( DECEASED)
================================================================
Appearance:
MR SHALIN MEHTA SENIOR ADVOCATE ASSISTED BY MS SEJAL K
MANDAVIA(436) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1,1.1
MS HARSHAL N PANDYA(3141) for the Respondent(s) No. 1.1.1
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                           Date : 09/03/2023

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

1. This appeal under Clause 15 of the Letters Patent is filed by the appellants - original respondents against the oral judgment dated 14.02.2022 rendered by the learned Single Judge in Special Civil Application No.2990 of 2019.

2. Heard Mr.Shalin Mehta, learned senior advocate assisted by Ms.Sejal Mandavia, learned advocate for the appellants and Ms.Harshal Pandya, learned advocate for the respondent - original petitioner.

C/LPA/266/2023 ORDER DATED: 09/03/2023

3. Mr.Mehta, learned senior advocate has assailed the impugned judgment mainly on the ground that though the deceased employee retired on 30.06.2008, the petition was filed in the year 2019 and, therefore, there was gross delay in filing the petition by the daughter-in-law after the death of deceased employee. Learned senior advocate for the appellants has pointed out from the record that the service of the deceased employee was regularized vide order dated 04.09.2004 with effect from 01.09.2004 and in fact, before the date of retirement, the deceased had worked only for four years and, therefore, the benefits of pension could not have been granted to him. However, at this stage, Mr.Mehta, learned senior advocate has pointed out that the appellants have already complied with the direction issued by the learned Single Judge.

4. On the other hand, Ms.Pandya, learned advocate for the respondent has opposed this appeal and referred the reasoning recorded by the learned Single Judge. Learned advocate for respondent has contended that as there was delay in filing the petition, the learned Single Judge has rightly given the direction to the appellants to pay arrears only for a particular period. Learned advocate for the respondent has referred the observations made in paragraph no.5.1 and 5.2 of the impugned judgment. Learned advocate for the respondent has also contended

C/LPA/266/2023 ORDER DATED: 09/03/2023

that once the appellants have complied with the direction issued by the learned Single Judge, this Court may not interfere with the said order.

5. We have considered the submissions canvassed by the learned advocates for the parties. We have perused the materials placed on record. It is true that the captioned petition was filed in the year 2019, whereas, the concerned employee was retired from the services in the year 2008 and the petition was filed for granting pensionary benefits. We have perused the observations made by the learned Single Judge more particularly the direction issued in paragraph no.5.1 and 5.2 which reads as under:-

"5.1 That apart, by virtue of the decision rendered in the case of Samudabhai Bhedi (supra), it has been held that for computation of pension of a daily wager, services rendered by the petitioner as daily wager shall be counted for the purposes of pension. On both these counts, the petition should succeed. However, taking into consideration the submissions of the learned counsels for the respondent with regard to the delay, it will be in the fitness of things to declare that the original petitioner (since deceased) was entitled to pension and pensionary benefits on the basis of his date of appointment of the year 1995 till the date of retirement i.e. 30.06.2008 and computation of pension be done accordingly. However, arrears be restricted as under:

5.2 Pension and other dues except gratuity shall be calculated considering his service from 1995 to 30.06.2008. However, payment of arrears which deceased petitioner is entitled to receive, be calculated / given from 28.12.2017 till his death i.e.

C/LPA/266/2023 ORDER DATED: 09/03/2023

30.11.2020 with appropriate revision of pension applicable to the employees of the Board. Since the daughter-in-law is not entitled for family pension but widow would have received, arrears of family pension be calculated from 01.12.2020 till the death of widow i.e. 28.04.2021. Thus, notional benefits be given from 30.06.2008 to 28.12.2017 and actual arrears be given as directed hereinabove."

6. We are of the considered opinion that the learned Single Judge has granted the benefits of arrears of pension from December 2017 upto November 2020 and, thereafter, the arrears of family pension for a period from 01.12.2020 to 28.04.2021 and the notional benefits is to be given from 30.06.2008 to 28.12.2017. Thus, we are of the view that no error is committed by the learned Single Judge while issuing such direction. It is pertinent to note here that at this stage, the appellants have already complied with the direction issued by the learned Single Judge and, therefore also, we are not inclined to entertain the present appeal. Accordingly, the present appeal stands dismissed.

7. The connected civil application shall stand disposed of accordingly.

(VIPUL M. PANCHOLI, J)

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL