UDAYKUMAR THAKORBHAI BHATT Vs. INDUSTRIES COMMISSIONER

JUDGEMENT

(1.) Heard learned advocate Mrs. Ketty A Mehta for the petitioner and learned AGP Mr. Pandya appearing on behalf of respondent.

(2.) According to the petitioner he was appointed as Statistical Assistant by order dated 10.3.1980. Thereafter petitioner had joined the service as Statistical Assistant on 15.3.1980 and the petitioner was confirmed on the said post. On 11.7.1989 petitioner was promoted to the post of Junior Industries Inspector. On 13.7.1989 the petitioner wrote a letter to the Officer on Special Duty and Industries Commissioner wherein he stated that he has taken over the charge with prior approval and made it clear that if he is not continued after 8 months as Junior Industries Inspector, he should be sent back as Statistical Assistant or Supervisor Gra.II which are equivalent posts in the office of the Industries Commissioner, Gujarat State. The petitioner appeared in the qualifying examination prescribed by the department. In the first attempt, the petitioner failed; in the second attempt, the department did not allow grading in the aggregate though the rules permitted the same and in the third attempt, on the day when the departmental examination was to be held, petitioner was informed at 10:00 am at Valsad about the examination being held at Ahmedabad at 11:00 am. The petitioner could not appear at the said examination. Thereafter the petitioner left the job willingly due to ill-health and family circumstances on 30.9.1996. The petitioner approached the State of Gujarat, Industries & Mines, Gandhinagar for fixation of his pension on the ground of invalidity and ill-health. The answer given by the Deputy Secretary, Department of Industries and Mines on 5.1.1998 condoning break of eight months' service required to complete 10 years of service according to the relevant rules in respect of the petitioner and granted the petitioner the pension. On 28.7.1998, General Manager, District Industries Centre, Valsad by his communication dated 28.7.1998 send the necessary pension papers to the Director of Pension and Provident Fund, Gujarat State, Ahmedabad for necessary action. Petitioner's service book was also sent along with that communication. It was requested that the petitioner's pension case should be accepted in view of the order passed by the Government of Gujarat on 5.1.1998. But same has been objected by the Director of Pension & Provident Fund on the ground that it is not the case of retirement but it is the case of resignation and therefore, petitioner is not entitled the pensionary benefits. That is how, the present petition has been filed by the petitioner.

(3.) On behalf of the respondent affidavit-in-reply has been filed by D.S.Vansda, Deputy Director of Pension & Provident Fund and only contention has been raised in the reply that as the petitioner has tendered his resignation from service he is not entitled to get pensionary benefit. This being the only defence raised in the entire reply by the respondents. However, in respect to the falling short qualifying service, the order is already passed on 5.1.1998 by the authority. In view of this fact, learned advocate Mrs. Mehta appearing on behalf of the petitioner has relied upon two decisions; one of the Apex Court and the other of the Division Bench of Delhi High Court. She relied on the decision in the case of M/S J.K.COTTON SPG. & WVG. MILLS COMPANY LTD., KANPUR V. STATE OF U.P. AND OTHERS, AIR 1990 SC 1808 and the decision of the Division Bench of Delhi High Court in the case of ASHWANI KUMAR SHARMA V. ORIENTAL BANK OF COMMERCE, 2003 (2) LLJ 575. Relying upon these two decisions Mrs. Mehta submitted that, resignation, whether could be treated as voluntary retirement for the purpose of pensionary benefit or not. The Division Bench of Delhi High Court has considered and same has been treated as retirement and petitioner was entitled the pensionary benefit.