Abdul Jalil Ibrahimbhai Mansuri vs Ahmedabad Municipal Transport ...
2023 Latest Caselaw 6437 Guj

                                                                                       NEUTRAL CITATION




       C/LPA/798/2023                                 ORDER DATED: 04/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO.            798 of 2023

       In R/SPECIAL CIVIL APPLICATION NO. 24783 of 2022

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                    ABDUL JALIL IBRAHIMBHAI MANSURI
                                 Versus
                 AHMEDABAD MUNICIPAL TRANSPORT SERVICE
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Appearance:
MR VA MANSURI(2880) for the Appellant(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
           and
           HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                Date : 04/09/2023

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr. V.A. Mansuri for the appellant and learned advocate Mr. H.S. Munshaw for the respondent Ahmedabad Municipal Transport Service.

2. The appellant-original petitioner has addressed challenge to the judgment and order of learned Single Judge dated 09.02.2023, whereby the Special Civil Application filed by the petitioner came to be rejected and the petitioner was denied the relief for grant of pensionary benefits.

3. The petitioner was appointed as Driver in the respondent Ahmedabad Municipal Transport Service

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(AMTS) with effect from 12.05.1979, who was made permanent on 01.05.1992. The petitioner has stated that he continuously worked right from the date of initial appointment till he voluntarily retired on 17.10.2005. The petitioner by that time had completed 26 years of service.

3.1 It is the case of the petitioner that he became entitled to pension as he had earned pensionable service. However, the pension was denied to him. It was therefore prayed in the petition to direct the respondent Corporation to give pensionary benefits to the petitioner from the date of his resignation including payment of arrears.

4. When the judgment and order of learned Single Judge declining the redressal of grievance of the petitioner is looked at, two considerations weighed with the learned Single Judge. Firstly that there was a gap in the service of the petitioner between 1996 to 2005 and the whereabouts of the petitioner till 2005 was not known. It is reasoned that it was also not clear as to why the petitioner had not claimed for pension till 2005.

4.1 The second ground weighed with learned Single Judge is that the petitioner having retired from 2005, but the petition was filed in the year 2022, after 17 years. According to learned Single Judge, the factor of delay would dis-entitle the petitioner

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to claim the pension.

5. Dealing with the second aspect first, it is well settled that right to pension is recurring right and cause of action for the same would be continuous in nature. Merely because the years have passed, the claim of the petitioner and consideration of his entitlement could not be discarded only on the said count alone.

5.1 While reasoning that there was a gap between 1996 to 2005 in the service of the petitioner, learned Single Judge misdirected himself in not considering certain admitted facts. It transpires from the record that the petitioner was dismissed in the year 1996 and he had invoked the jurisdiction of the Labour Court by way of filing Reference (LCA) No. 518 of 1998 to challenge his termination order dated 16.12.1996. The Labour Court had allowed the Reference of the petitioner in part by directing the first party employer-appellant herein to reinstate the workman with continuity in service. Copy of the order of reinstatement dated 03.06.2005 figures on record of the Special Civil Application and the present appeal (at Annexure-G, page 14).

5.2 Therefore, the period between 1996 to 2005 was the period which was consumed during the pendency of the Reference proceeding, which culminated in favour of the petitioner. Once the continuity was granted

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and award became final, the continuity benefit with its logical consequences would have to be extended to the petitioner.

5.3 The petitioner voluntarily retired under the Voluntary Retirement Scheme. By that time he had completed 26 years of service. In other words, the operative facts highlighted above eventually show that the petitioner had completed minimum 10 years of pensionable service to become entitled to pension.

5.4 Learned Single Judge has failed to notice and apply the material aspects on consideration of the attendant facts in dismissing the petition and not granting the relief. It is therefore held that the petitioner is entitled to pension having put in minimum pensionable service.

6. While the delay by itself will not debar the relief for the petitioner, at the same time, the submission of the learned advocate for the respondent could be countenanced that it is a long delay, which could not have been ignored.

6.1 Once the petitioner has moved the Court after 17 years, the equities would be balanced if the petitioner's case for pension is treated by considering the delay aspect. Therefore, it is provided that the respondent shall pay the pension payable to the petitioner from the date of filing of the petition. For the intervening period, the

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arrears shall not be paid to the petitioner.

7. In above view, the judgment and order of the learned Single Judge is set aside. The appeal is allowed in terms of the aforesaid directions.

(N.V.ANJARIA, J)

(D. M. DESAI,J) BIJOY B. PILLAI