[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been preferred by the appellants - original defendants to quash and set aside the impugned judgment and order dated 23.12.2011 passed by the learned Appellate Court - learned Principal District Judge, Porbandar in Regular Civil Appeal No.7 of 2009 by which the learned Appellate Court has allowed the said Appeal preferred by the respondent herein
- original plaintiff and has quashed and set aside the judgment and decree dated 17.12.2008 passed by the learned 2nd Senior Civil Judge, Porbandar in Regular Civil Suit No.571 of 2002 by which the learned trial Court dismissed the said suit preferred by the original plaintiff and consequently decreeing the suit declaring the act of the appellants - original defendants withholding retiral benefits of the original plaintiff i.e. pension, gratuity, leave, salary as illegal and arbitrary and declaring that the original plaintiff is entitled to get the retiral benefits as prayed for in the suit along with the interest at the rate of 9% per annum.
[2.0] It appears that the respondent herein - original plaintiff was the Government employee who was sent on deputation to the Gujarat Water Supply and Sewage Board (hereinafter referred to as "Board"). Till the plaintiff attained the age of superannuation on 29.11.2001, the plaintiff worked with the Board. Infact the appellants herein - original defendants also send the pension papers to the Director of Pension, however, the Director of Pension raised a dispute with respect to the pay scale and therefore, the pension papers send by the appellants herein - original defendants were not finalized and consequently after the plaintiff retired, he was not paid the retiral benefits inclusive of pension, gratuity etc. Therefore, the original plaintiff instituted the suit against the appellants herein
- original defendants only. The learned trial Court dismissed the suit against which the original plaintiff preferred Reguarl Civil Appeal No.7 of 2009 which has been allowed by the impugned judgment and order.
[3.0] Having realized that the plaintiff was the employee of Government who was sent on deputation to the Board and in the suit neither the State Government (employer) nor the Director of Pension were joined as party defendants (who were the only proper parties), Shri Deep D. Vyas, learned advocate appearing on behalf of the respondent herein - original plaintiff has stated at the Bar, under the instructions from his client, that he seeks permission to withdraw the main suit itself. He has also further stated at the Bar that the original plaintiff is ready and willing to accept the pay scale which may be determined by the concerned department/Director of Pension and on that basis he may be paid the final pension. Therefore, he has stated at the Bar that the original plaintiff shall make an appropriate representation to the concerned department as well as the Director of Pension as well as the Board to fix his pension on the basis of pay scale which may be determined by the concerned department and/or Director of Pension. He has requested to make suitable observation that the concerned department / Director of Pension and/or appropriate authority to finalize the dispute with respect to the pay scale which may be available to the plaintiff and determine the pension at the earliest and within stipulated time as original plaintiff has already expired on 29.11.2001 on attaining the age of superannuation and it is reported that the original plaintiff is bed-ridden.
[4.0] Shri Meena, learned advocate appearing on behalf of the appellants herein
- original defendants has no objection in permitting the plaintiff to withdraw the suit and permitting him to make an appropriate representation to the concerned authority / Director of Pension and the Board and to determine the dispute with respect to pay scale which may be available to the plaintiff within stipulated time.
[5.0] In view of the above, present Second Appeal is allowed. Respondent herein - original plaintiff is permitted to withdraw the main Regular Civil Suit No.571 of 2002 which was pending in the Court of learned 2nd Senior Civil Judge, Porbandar and consequently the judgment and decree dated 17.12.2008 passed by the learned trial Court in Regular Civil Suit No.571 of 2002 dismissing the suit as well as the impugned judgment and order dated 23.12.2011 passed by the learned Principal District Judge, Porbandar in Regular Civil Appeal No.7 of 2009 are hereby quashed and set aside. It will be open for the original plaintiff to submit appropriate representation before the appropriate authority / concerned department / Director of Pension and the appellants submitting that the original plaintiff is ready and willing to accept the pay scale which may be determined by the concerned department / Director of Pension and on that basis the pension may be fixed and as and when such a representation is made, the same be considered by the appropriate authority / department / Director of Pension in accordance with law and on merits at the earliest but not later than three months from the date of receipt of the present order and fix the pension of the original plaintiff. It is reported that the plaintiff is already paid the provisional pension and he is already paid the amount of gratuity.
[6.0] With this, present Second Appeal is allowed. No costs.
CIVIL APPLICATION NO.2291 OF 2012 [6.1] In view of disposal of main Second Appeal, no order in Civil Application No.2291 of 2012, which is accordingly disposed of.
(M.R.
Shah, J.) menon Top