Allowed

Abud Bin Abdulla v. the State of Maharashtra and Ors.

Bombay HC9 Oct 2014WP/1405/2002

Case brief

AI extract

What is this about?

The High Court held that a former government employee, retrenched without due compensation pension, was entitled to superannuation pension. The break in service caused by the illegal retrenchment was condoned under Rule 48 of the Maharashtra Civil Services (Pension) Rules, 1982, allowing his services from 1971 to 1990 to count.

What did the court decide?

Respondents to prepare pension proposal counting services from 1.10.1971 to 31.10.1990 and pay the widow the due amount and family pension.

Abud Bin Abdulla Vs the State of Maharashtra… — Pension and Retirement Benefits | Bombay HC (2014)

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W.P. No.1405/2002

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

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BENCH AT AURANGABAD

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WRIT PETITION NO.1405 OF 2002

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Abud Bin Abdulla,

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(since deceased, through L.Rs.)

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Smt. Sugrabi wd/o Abud Bin, Age 65 years, Occ. Household, r/o Arab Galli, Taluka Selu, District Parbhani

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... PETITIONER

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VERSUS

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The State of Maharashtra (Copy to be served on the Govt. Pleader, High Court of Bombay, Bench at Aurangabad)

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The Chief Engineer, and Joint Secretary to the Government of Maharashtra, Irrigation Department, Mantralaya, Mumbai

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The Superintending Engineer, Nanded Irrigation Circle, Nanded.

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The Executive Engineer, Nanded Minor Irrigation Department, Nanded. ... RESPONDENTS

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Shri A.D. Sugdare, Advocate for petitioner Smt. S.D. Shelke, A.G.P. for respondent Nos.1 and 2 Smt. Kalpalata Patil Bharaswadkar, Advocate for respondent No.3

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W.P. No.1405/2002

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CORAM: A.V. NIRGUDE AND A.I.S. CHEEMA, JJ.

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DATED: 9th October, 2014.

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ORAL JUDGMENT (Per A.V. Nirgude, J.)

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The petitioner Abud bin Abdulla, who filed this petition long back in 2002, is now no more. His widow is continuing this petition for getting pensionery benefits. Abud bin was appointed as Road Roller Operator prior to 1971 with Irrigation Department of Government of Maharashtra at Nanded. By order dated 1.10.1980, he was made permanent in service w.e.f. 1.10.1971. He thus became a permanent Government employee. Unfortunately, vide letter dated 16.7.1984, the Executive Engineer, under whom Abud bin was working, informed him that he would be retrenched w.e.f. 16.10.1984 and he would be paid retrenchment compensation. Abud bin then received certain compensation and stood retrenched. Within few months thereafter Abud bin was appointed on daily wages by respondent No.3 on 5.5.1985. Abud bin then worked till he reached age of retirement on 31.10.1990. In this tenure, he completed 5 years on daily rated establishment before 31.10.1990. Proposal for taking him on Converted Regular Temporary Establishment was

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W.P. No.1405/2002

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sent before his retirement. Thereafter, the office of respondent No.3 sent pension papers to the Accountant General, but the Accountant General held that Abud bin was not entitled to pension because he rendered only three years of qualifying service. It is in these circumstances, Abud bin sought condonation of break in service as per Rule 48 of the Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter referred to as the Rules). Rule 48 of the Rules reads as under :

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“ 48. Condonation of interruption in service:-

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(1) The appointing authority may, by order, condone interruption in the service of a Government servant :

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Provided that :--

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(a) the interruptions have been caused by reasons beyond the control of the Government servant.

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(b) the total service pensionery benefit in respect of which will lost, is not less than five years duration, excluding one or two interruptions, if any; and

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(2) The period of interruption condoned under sub-rule (1) shall not count as qualifying service.

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(3) In the absence of a specific indication to the contrary in the service record, an interruption between two spells of civil service rendered by a Government servant under Government, shall be treated as automatically condoned and the preinterruption service treated as qualifying service

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(4) Nothing in sub-rule (3) shall apply to

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W.P. No.1405/2002

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interruption caused by resignation, dismissal or removal from service or for participation in a strike.

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(5) The period of interruption referred to in subrule (3) shall not count as qualifying service.”

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The Government of Maharashtra, however, refused to condone the break without assigning any reason. Abud bin then approached Maharashtra Administrative Tribunal, Bench at Aurangabad. Even the learned Member of Maharashtra Administrative Tribunal held that since Abud bin did not challenge legality of his earlier order of retrenchment of 1987, he cannot seek condonation of break in service.

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We perused the entire record and realised that, following questions are required to be decided :

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(1) Whether Abud bin's service in the first phase between 1971 to 1984 was pensionable as per the Rules ?

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(2) If the answer to the question above is in affirmative, whether the order retrenching Abud bin was lawful ?

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(3) Whether the service of Abud bin in the second phase

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between 5.5.1985 till 31.10.1990 or any part thereof, can be held to be qualifying service for pension ?

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(4) If the answer to the above question is in affirmative,

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W.P. No.1405/2002

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whether these two phases can be joined together by condoning the break in service under Rule 48 of the Rules ?

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As to Point No.1 : Unfortunately, Abud bin was not aware that he was a permanent Government employee w.e.f. 1971 when in 1984 his service was no more required by his employer. He was entitled to compensation pension as provided in Rule 62(4) of the Rules. Rule 62(4) reads as under :

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“Compensation pension, which is a pension granted to a Government servant who is discharged from Government service otherwise than on medical certificate and for no fault of his own, before earning a Retiring or Superannuation Pension.”

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Rule 81 is relevant rule providing procedure as to

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how compensation pension is awarded to a Government employee. Rule 81 reads as under :

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“81. Conditions for grant of Compensation Pension :-

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If a Government servant is selected for discharge owing to the abolition of his permanent post or owing to a change in the nature of the duties of that post, he shall, unless he is appointed to another post the conditions of which are deemed by the authority competent to discharge him to be at least equal to those of his own, have the option :-

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(a) of taking any Compensation Pension or

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gratuity to which he may be entitled for the service he has already rendered, or

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(b) of accepting another appointment or transfer to another establishment even on a lower pay, if offered, and continuing to count his previous service for pension.”

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Both these provisions were applicable to the situation in which Abud bin was retrenched in 1984. Unfortunately, his employer did not offer him compensation pension etc. as provided under Rule 81 nor Abud bin was offered appointment or transfer to another establishment as provided in clause (b) of Rule 81. Following of this procedure was necessary in this case, but it seems, even the employer of Abud bin was probably not aware of these provisions at that time. So, the order of retrenchment of Abud bin, dated 16.7.2014 was apparently an illegality and non est . In view of this discussion, we are of the firm view that, the first phase of Abud bin's service was pensionable because he was a permanent Government employee for more than 10 years and that he was entitled to compensation pension on the day he was retrenched.

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As to Point No.2 :- On the face of it, there is no difficulty for giving finding on the question in favour of Abud bin because, on the face of record, it is seen that, even the Accountant General accepted the case and held that his service

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for three years was qualifying service for pension. So, the second phase of Abud bin's service though lasted for about five years, the qualifying service was only for three years.

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The crucial question thus is, Whether the break in these two services can be condoned.

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One of the conditions for condoning interruption in service is interruption caused by reason beyond the control of the Government servant. Admittedly, Abud bin cannot be blamed for his retrenchment and termination. In view of this, proviso (a) to sub-rule (1) of Rule 48 was applicable to the case of Abud bin. One more reason for condoning this interruption is, the patently illegal order of retrenchment passed by Abud bin's employer in 1984. In view of these circumstances, the Government ought to have condoned the interruption in Abud bin's service and his case ought to have been recommended for pensionery benefits. We, therefore, allow this Writ Petition and pass following order :

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The respondents shall prepare pension proposal of Abud bin Abdulla for superannuation pension counting services from 1.10.1971 till 31.10.1990. The same shall be sent to Accountant General and the amount due to Abud bin be paid to

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his widow, deducting retrenchment compensation paid to Abud bin Abdulla. The entire amount payable to Abud bin Abdulla till his death, should be paid to the petitioner wife and his wife should also be paid family pension till her death. Rule made absolute.

Abud Bin Abdulla v. the State of Maharashtra and Ors.

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Abud Bin Abdulla v. the State of Maharashtra and Ors.

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