The matter is notified for final hearing at serial no.1 and the Board shows that it is listed for eighth time before the Court. It is pursuant to an order of the Hon'ble the Acting Chief Justice which is conveyed under the signature of the Registrar (Judicial) dated 26th March 2012 that the matter is placed before this Court. When the matter was called out, learned advocate Ms.Mamta R. Vyas for respondent no.3-Kalol Municipal Borough requested for time. Taking into consideration the fact that a person, who retired from service in the year 2004 and was not paid his retiral dues, more particularly, the pension for which he had to approach this Court by filing Special Civil application No.5038 of 2004, which came to be finally heard and decided by judgment and order dated 27th January 2006, which is the subject matter of this appeal and the appeal reaching final hearing in the year 2012, the request was declined. The learned advocate for respondent no.3 could not make out any justifiable ground for seeking adjournment. Therefore, the matter was taken up for final hearing. 2. The learned advocate for the appellant- original petitioner invited attention of the Court to the facts of the case, which are set out in para 3 of the petition. For ready perusal the relevant paras are reproduced hereunder:
“3.1 The petitioner respectfully submits that the petitioner was working as an octroi watchman under respondent no.3 since 18.06.1982. The petitioner states that the post of the octroi watchman was sanctioned by the Government. Annexed hereto and marked as ANNEXURE 'A' to this petition is a copy of the letter dated 05.03.1999 whereby the Government has sanctioned the post of octroi watchman as a regular post.
3.2 The petitioner respectfully submits that on 12.02.2004 petitioner competed the age of 60 years and petitioner was retired as petition reached the age of superannuation. The petitioner states that Nagarpanchayat vide letter dated 11.02.2004 informed the petitioner that the petitioner has reached the age of superannuation, therefore, the petitioner is being retired from services. Annexed hereto and marked as ANNEXURE 'B' to this petition is the copy of letter dated 11.02.2004.
3.3 The petitioner submits that time and again the petitioner after retirement orally requested the Nagar Panchayat to pay the pension, gratuity and other benefits for which the petitioner is entitled after the retirement. The petitioner states that petitioner also vide letter dated 24.02.2004 requested the respondent Nagar Panchayat to pay the pension, gratuity, provident fund etc. The petitioner stats that thereafter till date neither petitioner has received any reply from the Nagar Panchayat nor petitioner has being (sic., been) paid the retiremental benefits. Annexed hereto and marked as ANNEXURE 'C' to this petition is the copy of letter dated 24.02.2004.”
3. The relief sought for by the appellant- original petitioner in the petition is as under:
“7(A) Your Lordship be pleased to issue a writ of mandamus, or any other appropriate writ, order or direction for quashing and setting aside the action of the respondent authority in not giving the benefits of pension to the petitioner on being attaining the age of superannuation with interest at at the rate of 18% in the interest of justice.”
4. The learned advocate for the appellant- original petitioner invited attention of the Court to an important aspect of the matter, namely, Government Resolution bearing No.NPM/ 1298-1118-A dated 5th March 1999, a copy of which is produced at page 7 (Annexure 'A'). The learned advocate for the appellant- original petitioner submitted that what is important to be noted in the said Government Resolution is that just above table giving details of the nomenclature of the posts and strength of the posts, it is specifically mentioned that sanction is accorded by the Government 'retrospectively'. The learned advocate for the appellant- original petitioner then invited attention of the Court to Annexure 'B'. It is communication from respondent no.3 dated 11th February 2004, wherein it is mentioned that the appellant was serving as octroi watchman with Kalol Nagarpalika. On abolition of octroi, the appellant was assigned duties of pump driver in Water Supply Department and as his date of birth is 12.02.1944, on his attainging the age of 60 years on 12.02.2004, he stood relieved on the last day of the month, viz. 29.02.2004. The learned advocate for the appellant- original petitioner then invited attention of the Court to a communication dated 24.02.2004 addressed to the President of Nagarpalika (Borough), Kalol for paying pension, gratuity and provident fund amount. The learned advocate for the appellant- original petitioner invited attention of the Court to decision of this Court in Special Civil Application No.5189 of 1995, a copy of which is produced at pages 36 to 40. The learned advocate for the appellant also submitted that LPA was filed against the said judgement and order by present respondent no.3 being LPA No.18 of 1996, and a copy of the decision in LPA dated 02.04.1996 is also made available for perusal of this Court. The learned advocate for the appellant then invited attention of the Court to decision of this Court in Special Civil Application No.10890 of 1998 dated 7th May 1999 which was required to be filed by widow of the petitioner of SCA No.5189 of 1995 as respondent no.3 had not paid the amount payable to the widow of the petitioner. The learned advocate for the appellant invited attention of the Court to the operative part of the order which reads as under:
“5. The action of the Collector of the district concerned is also difficult to appreciate. He is being the administrative head of the district, instead of making the petitioner shuttle cock should have decided the matter himself and should have given necessary directions to the concerned authorities to give the petitioner the revised family pension. (emphasis supplied)
6. In the result this special civil application succeeds and the same is allowed. It is hereby declared that the petitioner is entitled for the revised family pension under the resolution dated 30/10/97 w.e.f. 1/1/96. The arrears of the difference of the revised family pension be calculated within one month from the date of the receipt of the writ of this order and this amount should be paid to the petitioner within 15 days next. The petitioner shall be entitled for the interest on the arrears of the difference of the amount of the revised family pension @ 12% from the due date till the date of payment thereof.
7. It is the case where a poor lady has been constrained to file the petition before this court because of inaction and omission and totally casual approach by none other than the District Collector of the District concerned and the respondent No.3. It is a fit case where the petitioner should be awarded costs of this litigation also. The learned counsel for the petitioner submits that the petitioner has incurred Rs.2,500/towards expenses of the litigation. It is really a matter of realisation how the petitioner could have arranged this amount. The respondents Nos. 2 & 3 are directed to pay this amount of the costs to the petitioner in equal proportion. Rule is made made absolute accordingly.” (emphasis supplied)
5. The learned advocate for the appellant also invited attention of the Court to an order of the learned Single Judge in Special Civil Application NO.1000 of 1994, wherein the opening para reads as under:
“The submission of the learned advocate is that Panchayat service constituted under Section 203 of the Gujarat Panchayats Act is a civil service of the State and the members of the service are Government servants and they are entitled for the equation of posts and to the extent of benefits arising out of the Two Pay Commission Reports, as held by the Supreme Court in the case of State of Gujarat and Raman Lal Keshav Lal Soni (AIR 1984 SC 161).”
The learned Judge was pleased to grant liberty to the petitioner to file representation before the respondent- Secretary, Panchayat & Housing Department.
6. It is really painful that the respondents, more particularly respondent no.3, is contesting this matter on most flimsy grounds and in most casual manner. This is clear from the fact that an affidavit in reply is filed on behalf of respondent no.3 in the petition, on perusal of the affidavit in reply it is noted that it is filed by one Shri M.B. Shah. Nowhere in the affidavit in reply the deponent has taken trouble to mention his designation and he has come forward not only with a bald assertion but also contradictory averments in the same affidavit. To illustrate in para 2 it is stated that, “It is true that the petitioner was appointed as an octroi watchman in the year 1982 but he was appointed without following due procedure purely for part time on temporary basis. The post was not even regularized. The petitioner has retired on reaching the age of superannuation on 11.2.2004.” (emphasis supplied).
As the Court wanted to be sure about the designation of the deponent, Shri M.B. Shah, the original papers were called for and on perusal of the original papers it is found that full name of the deponent is Mukesh B. Shah and just above the signature, there is rubber stamp affixed depicting that he is 'Chief Officer” of the Municipality (Borough), Kalol, Panchamahals.
7. The aforesaid averments are false on the face of record of the case. Firstly, it is the communication of the Nagarpalika states that on his reaching the age of superannuation on 12.02.2004 as his date of birth is 12.02.1944, he stood retired on the last date of the month, viz. 29.02.2004 (Annexure “B”, page 14). Whereas an affidavit of the deponent has stated that he retired on reaching the age of superannuation on 11.02.2004.
It is the settled law that a person/ authority, who is in possession of the record is supposed to substantiate his averments in affidavit, when he is stating on oath, by producing the concerned/ relevant record. The deponent has an audacity to state that he was appointed without following due procedure, purely for part time on temporary basis. He being in custody of the relevant record he should have substantiated the aforesaid averments in absence of which it remains nothing else than a bald assertion.
It is really painful that a seasoned advocate like Ms.Mamta R.Vyas is asserting that once a statement made in the petition is controverted in the aforesaid manner it is the duty of the petitioner to produce all the relevant record. The person, who is in possession of the documents chose not to produce anything and is bold enough to make a false statement on oath and then argument is made that contents of such affidavit should be taken not only as true but be made the basis to throw the appeal out.
8. As if this is not enough this deponent has stated in para 5 as under:
“I respectfully submit that on 1.5.2001 because of abolition of octroi, the employees including the petitioner were declared surplus and they were absorbed in other departments. It is true that the post of Octroi Naka Watchman is sanctioned and the Government has sanctioned 15 posts but in absence of any pension rules, the said benefits cannot be extended to the petitioner.” (emphasis supplied)
9. In para 2 it is categorically stated that, “The post was not even regularised”. The affidavit is sworn on 29th day of June 2004. Communication dated 05.03.1999 is very much on record of the petition wherein it is specifically stated that, “the posts are regularized retrospectively”. This fact could not have been lost sight of by the deponent when he is filing affidavit before this Court contesting the claim of retired employee, who has spent 22 years of his life in the service of respondent no.3 and now at the fag end of life he is told that he is not entitled to pension because there are no pension rules. Thus, taking into consideration the averments made in paras 2 and 5 together, the deponent has stated contradictory things in the above two paras. This gives an impression that he is out to contest the claim without being mindful of merits of his own case.
10. This Court is of the opinion that this is a fit case wherein departmental action is required to be taken against the deponent. It is possible that said M.B. Shah may not be in service, in that case even his pensionary benefits may be required to be curtailed after holding departmental proceedings for having stated incorrect facts before this Court in affidavit. What is stated in para 5 is that on 1st May 2001 there was abolition of octroi, therefore, along with other employees the petitioner was declared surplus, but then they were absorbed in other departments. If that is so, the averments made in para 2 that he was appointed “purely for part time on temporary basis” stands negated. The fact that the Government did sanction 15 posts of Octori Naka Watchman (the post held by the appellant- original petitioner) retrospectively, there is no question of the petitioner being not entitled to the benefits claimed by him.
The Registry is directed to send a copy of this judgment along with a copy of the petition to the Appointing Authority, who in case is not the Disciplinary Authority, then shall sent it to the Disciplinary Authority, for initiating appropriate departmental action against Shri M.B.Shah, who was working as Chief Officer of Kalol Nagarpalika at the relevant time, for the aforesaid action of stating incorrect facts before this Court on an affidavit.
The Disciplinary Authority is expected to place on record the action taken in the matter.
11. This Court deems it proper to mention at this stage about the over-enthusiasm of the learned advocate for respondent no.3. The learned advocate for respondent no.3 made a statement in pre- lunch sessions that there is a Full Bench decision, by which this matter is covered and that the appellant – original petitioner is not entitled to get anything. In the post-lunch session, learned advocate for respondent no.3 produced a copy of the judgement of Division Bench of this Court (Coram: Hon'ble the Chief Justice Mr.K.S. Radhakrishan and Hon'ble Mr.Justice Akil Kureshi) dated 02.07.2009 in LPA No.1381 of 2004 in SCA No.2019 of 1988 and other matters. The opening para of that judgment reads as under:
“The question that has come up for consideration in all these cases is whether a person who has been appointed in a Panchayat without following the procedures laid down under Section 203(4)(b) of the Gujarat Panchayats Act, 1961 (for short “the Act”), can be treated as a member of the Panchayat service so as to claim the pensionary benefits under Gujarat Panchayat Service (Pension) Rules, 1976 and the Family Pension Scheme, 1972, and/or such appointee can be treated as an employee retired from the Panchayat service.”
The learned advocate for respondent no.3 invited attention of the Court to para 19 of the said judgment, which reads as under:
“19. Under the circumstances, we are inclined to dismiss Letters Patent Appeal Nos. 1522 of 2004, 1523 of 2004 and 614 of 1998 and allow Letters Patent Appeal No. 1381 of 2004, declaring that only those employees who have been appointed in the Panchayat service following the procedure laid down under Section 203 of the Gujarat Panchayats Act, can be treated as member of the Panchayat service entitled to get pensionary benefits under Gujarat Panchayat Service (Pension) Rules, 1976 and Family Pension Scheme, 1972. We further hold that those persons who have been appointed by the Panchayat in their service otherwise than following the above mentioned statutory procedure are entitled to get pensionary benefits and family pension only if there is a Scheme available with the respective Panchayats. We make it clear if any pensionary benefits including Family Pension have already been paid to the petitioners on the strength of the judgments of the Court, they shall not be recovered from them, but they are not entitled to any future payments.”
As discussed hereinabove there is bald assertion on the part of respondent no.3 by way of affidavit of one M.B. Shah without placing on record any material in support of the these assertions. The Court is conscious of the fact that it is a petition filed by a lowly paid employee of respondent no.3, serving as Octroi Watchman and averments made by him are denied by the aforesaid bald assertions, few things are required to be taken note of, viz.,
(i) It is disputed by the deponent that he joined services in 1982,
(ii) the post of Octroi Watchman is regularized in 1999 with retrospective effect,
(iii) octroi is abolished in the year 2001,
(iv) on abolition of octroi, the appellant – original petitioner is absorbed in Water Supply Department as Pump Driver, and last, but not the least, the most important is that,
(v) he has put in more than two decades of his life in service of respondent no.3. Now at the fag end of life if he is told that he is not entitled to certain benefits, because he is not regularly appointed is required to be deprecated.
This is a case wherein it cannot be said that the appellant original petitioner got backdoor entry, because if that would have been the case then on change of the body (elected body of the local authority) he would certainly have been thrown out. Besides, the Court cannot lose sight of the fact that the assertion is that the appellant original petitioner was appointed without following due procedure and he was appointed purely for part time and on temporary basis. This assertion is too bald and tall to be substantiated and therefore, the Court is of the opinion that even if the ratio laid down by the Division Bench in the aforesaid decision (dated 02.07.2009, which is under challenge before the Hon'ble the Apex Court by way of SLP (Civil) CC21125 of 2009 wherein delay is condoned by order dated 04.01.2010 (that is the only information supplied by the learned advocate appearing for respondent no.3), the appellant cannot be denied the benefit prayed for by him.
12. This Court is of the opinion that denying the relief as prayed for by the appellant – original petitioner will be a clear case of miscarriage of justice. Therefore, taking into consideration the totality of facts of the case the present appeal deserves to be allowed. It is accordingly allowed. Respondents no.1, 2 and 3 are jointly and severally held liable to pay the benefits of pension to the appellant original petitioner since the date he was superannuated. Respondent no.1 herein is directed to pay the amount of arrears of pension with interest at the rate of 9% per annum subject to its right to recover the same from the grant payable to respondent no.3, if any. The payment shall be made as early as possible, but not later than 15th May 2012.
(RAVI R. TRIPATHI, J.) (G.B. SHAH, J.) karim