AB AZIZ SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was appointed in the Forest Department as a Forest Guard. The respondent No.2 issued an order bearing No. 47 of 1993 dated 29/03/1993, notifying the date of retirement of the petitioner as 31 -12 -1994, accordingly the petitioner was superannuated on the said date. The petitioners case for pensionary benefits came to be recommended No. 1 and a communication came to be issued by respondent No.2 to the address of respondent No.1 vide his No. 1320/G dt.30/09/1994, wherein it was conveyed to the concerned office that nothing remained outstanding against the petitioner. In response to the said communication respondent No. 1 wrote to the respondent No.2 that the date of birth of the petitioner being 27/12/ 1935, therefore, he was due for his retirement on 31 /12/1993 and through the said communication respondent No.1 asked respondent No.2 to work out the pay and allowance whatever paid to the petitioner from 1st. January, 1994 to 31st December, 1994 and to intimate the same to respondent No.1 so that recovery of the said amount is effected from the death -cum -retirement gratuity. This communication has been impugned through this writ petition and the petitioner prays for a writ of mandamus to command the respondents to pay pensionary benefits to the petitioner. Respondents were put on notice to meet the claims set by the petitioner. No counter was filed and claim of the petitioner remained unrebutted.

(2.) PETITION has come up for final hearing today. Mr. A. Bhan counsel for the respondents has not chosen to appear inspite of the fact that his name stands reflected in the cause list. Mr. M. Amin learned GA appeared for the respondents, submits that the petitioner has over stayed in service for one year therefore, recovery has been ordered genuinely by respondent No. 1 and defends the communication impugned on the strength of such argument.

(3.) WHETHER the petitioner has over stayed in service on his own is a question to be appreciated in the light of the factual position and the facts which emerge from the documents forming part of the petition are as under: - a. The documents appended with the writ petition make it amply clear that the date of retirement of the petitioner was notified by respondent No.2 vide order No. 47 of 1993 and a copy of the said order was forwarded to the respondent No.1 as also to other authorities concerned which fact is evident from the order itself. The notification is dated 29/03/1993 and petitioner had to retire on 31/12/1993 according to the impugned communication, thus there was enough time available to respondent No.1 to ask the respondent No.2 to reflect the correct date in the notice of retirement issued to the petitioner and had the respondent No.1 acted right in time the petitioner would not have been retained after the due date, but fact of the matter remains that the respondent No.1 did not raise a finger on this issue. b. The notification referred herein above coupled with the communication impugned make it clear that the petitioner has not functioned on the establishment of respondents on his own but was asked by the respondents to function till 31/12/1994 which is evident from the notice of retirement.