KANKUBEN CHHAGANBHAI VANKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Mr. P.K. Shukla for the petitioner and Mr. N.D. Gohil, the learned AGP for the respondents. The case of the petitioner in this petition is to the effect that her husband late Shri Chhaganbhai Dhulabhai passed away on 1.9.1998. The petitioner applied for family pension benefits vide her application dated 9.3.1999 The present respondents vide letter dated 15.3.1999 denied the benefits on the ground that her husband late Chhaganhai has not put up 10 years of service. It is the case of the petitioner that her husband had joined the service on 26.8.1982 and his services were terminated on 27.9.1984 and the labour court vide award dated 16.6.1994, ordered for reisntatement of her husband Chhaganbhai with 50 per cent of the back wages for the intervening period. According to the petitioner, under such circumstances, Chhaganbhai had put in 10 years of service and therefore, she is entitled for family pension after the death of her husband. The petitioner has, therefore, approached this court by way of this petition. According to the petitioner, she applied for family pension as her husband has put in more than 10 years qualifying service as per the Government Resolution dated 17.10.1988.

(2.) Reply to the present petition has been filed by the respondents. In para 3 of the said reply, it has been averred that in fact, the husband of the petitioner was employed as a daily wager and he served as a watchman from 26.8.1982 and that her husband served from 26.8.82 to 26.9.84. According to the respondents as per the said affidavit in reply, her husband worked for 42 days from 26.8.82 to 27.12.82; he worked for 174 days from March, 1983 to 24.12.1983; 175 days from 25.12.1983 to 26.9.1984 and due to misbehaviour with the section officer on the site and irregularities, he was punished and relieved from service and was not called back after 27.9.1984. According to the respondents, husband of the present petitioner approached the labour court in the year 1984 for reinstatement with all benefits and in the said reference made at the instance of her husband, an award of reinstatement with 50 per cent of the back wages was passed by the labour court which award was challenged by her husband qua back wages by filing special civil application no. 12064 of 1994. According to the respondents, husband of the petitioner was reinstated with effect from 11.11.1994 and as per the GR dated 17.10.1988, he is required to have completed 10 years qualifying service which the husband of the petitioner was not completing as stated above and, therefore, the petitioner is not entitled to claim family pension as per GR dated 17.10.1988.

(3.) I have considered the submissions made by the learned advocates for the parties. Considering the GR dated 17.10.1988, 10 years service is necessary for becoming entitled for pensionary benefits and the same is required to be satisfied by the workman. While examining the present case, date and details of service record of the late husband of the petitioner given by the respondent is required to be examined. It is the case of the respondents that the petitioner is not entitled to claim and receive the family pension after the death of her husband because the husband of the petitioner was not completing 10 years qualifying service which is the condition precedent for entitlement of pension or family pension as the case may be. According to the respondents, husband of the petitioner was employed as a daily wager and he served as a watchman from 26.8.1982 and that her husband served from 26.8.82 to 26.9.84. According to the respondents as per the said affidavit in reply, her husband worked for 42 days from 26.8.82 to 27.12.82; he worked for 174 days from March, 1983 to 24.12.1983; 175 days from 25.12.1983 to 26.9.1984 and due to misbehaviour with the section officer on the site and irregularities, he was punished and relieved from service and was not called back after 27.9.1984. According to the respondents, husband of the present petitioner approached the labour court in the year 1984 for reinstatement with all benefits and in the said reference made at the instance of her husband, an award of reinstatement with 50 per cent of the back wages was passed by the labour court which award was challenged by her husband qua back wages by filing special civil application no. 12064 of 1994. According to the respondents, husband of the petitioner was reinstated with effect from 11.11.1994. Thus, the respondents are considering the actual service rendered by the petitioner's husband prior to the termination of his services and after he was reinstated in service on 11.11.1994 till the date of his retirement and on that basis, are calculating the service rendered by the husband of the petitioner and are alleging that he is not completing 10 years service as required under GR dated 17.10.1988 and, therefore, the petitioner is not entitled for family pension. The husband of the petitioner retired on 31st August, 1998. In the reference proceedings before the labour court, husband of the petitioner was reinstated in service with 50 per cent of the back wages for the intervening period. Therefore, if the intervening period is taken into consideration while considering the qualifying service so as to consider the entitlement of the petitioner for family pension, it would appear that the husband of the petitioner is qualifying more than sixteen years of service entitling the petitioner to claim and receive the family pension as per the GR dated 17.10.1988. Therefore, the contention of the respondents that on 1st October, 1988, the petitioner was not in service is not correct because the GR dated 17.10.1988 is not specifying that the daily wagers those who are not in service on 1st October, 1988 are not entitled for such benefits flowing from the said Resolution. Even otherwise, considering the award of reinstatement made by the labour court in Reference No. 270 of 1985 dated 16th June, 1994 wherein the respondents were directed to reinstate the husband of the petitioner with 50 per cent of the back wages for the intervening period, the respondents are required to consider that the husband of the petitioner was in service for the intervening period and if that is considered as service rendered by him, then, the contention of the respondents that her husband was not in service on 1.10.1988 and, therefore, he is not entitled for such benefits is redundant. It is also not the case of the respondents that for the period from 1982 to 1984 till the date of termination of the services of her husband, her husband was not in continuous service from the date of joining till the date of termination of his services. Considering this aspect and also considering the another aspect as stated earlier that the termination order was set aside by the labour court and the husband of the petitioner was reinstated in service by award dated 16.6.1994 with 50 per cent of the back wages for the intervening period, it is clear that save and except the denial of 50 per cent back wages, the husband of the petitioner was ordered to be reinstated with all consequential benefits save and except the denial of 50 per cent back wages and the reinstatement includes continuity of service because it was not a case of reemployment. Further, it is also required to be considered that while granting the reinstatement, 50 per cent of the back wages was granted for the entire intervening period and in view of that, the respondents are required to consider that the husband of the petitioner was deemed to be in service for all purpose save and except 50 per cent back wages for that period which were specifically denied by the respondents. It should be considered that the continuity of service has not been specifically denied by the labour court while granting reinstatement and awarding 50 per cent back wages for the intervening period. In view of this factual position, the contention raised by the respondents cannot be accepted.