Pension claims cannot be denied based on prior dismissal when an employee is reinstated; continuity of service permits pension eligibility regardless of previous benefits accepted.

JUDGMENT :

A.S. SUPEHIA, J.

1. The present LPA is directed against the order dated 15/10/2014 passed by the learned Single Judge rejecting the writ petition being SCA No.10721 of 2013 filed by the father of the applicants-deceased writ petitioner. During the pendency of the present appeal, the appellant- original writ petitioner has passed away hence, the appeal is pursued by his legal heirs.

2. The writ petitioner was seeking directions on the respondent – Corporation to accept the option exercised by the him to avail the pension under the Pension Scheme introduced vide Government Resolution dated 24/08/1994. However, the respondent–Corporation has denied the request of the deceased–employee for the reason that he cannot be allowed to exercise the option at this stage, as he was dismissed from service.

3. The facts, which are established from the pleadings are that the petitioner was recruited as a Drainage Junior Pump Operator in the year 1972. On 01/01/1992, in view of the incident of misbehavior with the Supervisor, he was charge-sheeted and thereafter, he was subjected to the departmental proceedings, which ultimately resulted into dismissal from the service on 12/08/1994.

3.1 The action of punishment culminated into the Reference proceedings being Reference (LCB) No.45 of 1998, and by an award dated 12/01/2004 passed by the Labour Court, Bhavnagar, the deceased- employee-appellant was ordered to be reinstated in service; with continuity of service and 25% back wages. The respondent – Corporation assailed the said award by filing a writ petition being SCA No.7641 of 2004, which was also dismissed vide order dated 05/07/2004.

3.2 Thereafter, the deceased–petitioner was reinstated in service on 18/04/2004 and ultimately, he retired from services on reaching the age of superannuation on 30/04/2006.

3.3 During the interregnum period i.e. on 24/08/1994, almost after 12 days of deceased-employee dismissal, the State Government through the Urban Housing and Urban Development Department, State of Gujarat, introduced a Pensionary Scheme for the employees of the respondent– Corporation under the provisions of Section 465(3)(a) of the BOMBAY PROVINCIAL MUNICIPAL CORPORATION ACT , 1949. As per the said provision, the employees of the Corporation under the CPF Scheme (Contributory Provident Fund) had to exercise the option to switch over to pension scheme; within a period of 30 days from the issuance of the notice by the Commissioner of the respondent – Corporation.

3.4 It appears that the deceased employee(petitioner) filed an application on 03/03/2005 i.e. on the date of the retirement to give benefit of the pension scheme and accordingly, the Executive Engineer, Drainage Department of the respondent–Corporation has acknowledged the filing of the application and also recommended the needful action since the employee had yet not collected his provident fund and gratuity. Thereafter, the petitioner submitted representations on 30/04/2006, 08/09/2006, 15/01/2007, 05/11/2009 and 14/10/2010 to the respondent - corporation to allow him to exercise the option to switch over to pension scheme and to grant him pension.

3.5 Vide communication dated 24/02/2012, the respondent – Corporation refused to accept the request of the deceased–employee for grant of pension by assigning the reason of his dismissal from service at the relevant time, when the scheme was introduced.

3.6 The inaction on the part of the respondent–Corporation in extending the benefit was assailed by the petitioner (deceased–employee) by filing a captioned writ petition. By the interim order dated 20/09/2013 passed in captioned writ petition, the learned Single Judge h