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2016 Supreme(J&K) 632
IN THE HIGH COURT OF JAMMU AND KASHMIR
ALI MUHAMMAD MAGREY, J.
Nargis Begum – Appellant
Versus
J&K S.R.T.C. – Respondent
SWP No. 1621 of 2006
Decided On : 23-03-2016
Advocate Appeared:
For the Appellant : Saquib Amin Parray.
For the Respondent: Altaf Haqani.
The central legal point established is that a deceased employee, whose termination is set aside after death, should be treated as a regular employee and entitled to full pensionary benefits as if he had retired in the normal course without any charges against him.
Headnote:
PENSION - Regularization of Employee - J&K Civil Services Regulations, 1956 - Article 242, Note 1 and Note 6
Fact of the Case:
The deceased employee was terminated from service, and his legal heirs sought full pensionary benefits. The petitioner challenged the pension fixation and sought various reliefs through a writ petition.
Finding of the Court:
The court held that the deceased employee should be treated as a regular employee and entitled to full pensionary benefits as if he had retired in the normal course without any charges against him.
Issues: The main issue was the calculation of pensionary benefits for the deceased employee and the entitlement of his legal heirs to receive full pensionary benefits.
Ratio Decidendi: The court relied on J&K Civil Services Regulations, 1956 - Article 242, Note 1 and Note 6, and the judgment in the case of Lakshmi Rani Baloria vs. State and Others, 2005 (2) SLJ 590 to establish that the deceased employee should be treated as if exonerated of all charges and entitled to full benefits.
Final Decision: The writ petition was allowed, and the impugned pension fixation was quashed. The respondents were directed to implement the judgment of the Labour Court/Industrial Tribunal and treat the deceased employee as a regular employee, allowing full pensionary benefits and releasing all pensionary benefits at normal rates along with arrears, if any, to the petitioner.
1. Ghulam Mohammad Dar (for short deceased employee) - husband of present petitioner, was appointed as apprentice in J&K State Road Transport Corporation in the year 1966. The deceased employee, as writ petition would reveal, was absorbed as Helper in respondent corporation and thereafter confirmed as a permanent employee. He was, vide order No. RTC/EC-II/2095 dated 27th September, 1980, terminated from services. He threw challenge to his termination before Industrial Tribunal/Labour Court, J&K Srinagar. During pendency of claim petition, Ghulam Mohammad Dar (deceased employee) passed away and his legal heirs were brought on record and substituted in place of deceased employee. Industrial Tribunal/Labour Court, J&K Srinagar, vide order dated 7th September, 2000 quashed Termination Order dated 27th September, 1980 and respondents were directed to pay 60% of the back wages of deceased employee to his legal heirs from 19.1.1987 till the date of award at the revised rates, if any. The respondents were also directed to pay costs of litigation. According to petitioner, back wages to the extent of 60% as also litigation costs of Rs. 5000/- have been paid to family of deceased employee.
2. Petitioners case is that the net effect of quashment of termination order by Industrial Tribunal/Labour Court, is that deceased employee was to be treated as a regular employee till the date of his death and after his death his widow was entitled to receive the full pension up to the date of superannuation. Petitioner, in writ petition on hand, states that since last pay of deceased employee has been fixed @ Rs. 3935/- per month, the pension is to be calculated on the said amount up to the period of seven years and thereafter pension is to be paid under applicable rates. However, in terms of PPO No. 404877, impugned in writ petition, pension has been fixed @ 60% w.e.f. 22.1.2000 to 21.1.2007 and that respondents have sanctioned pension at the rate of Rs. 2361/- instead of Rs. 3935/- per month. By this, petitioner is aggrieved and has come with instant writ petition, seeking following relief:
"(a) By writ of mandamus, commanding respondents to implement judgment of labour court quashing the termination order of the husband of petitioner and treating him as a regular employee of the corporation on the date of his death and allow her full pensionary benefits admissible to such employees whose death takes place in harness and release full pensionary benefits at normal rates along with arrears from the date of her entitlement.
(b) By writ of Certiorari quashing PPO No. 404877 to the extent it reduces the pension of the petitioner to the extent of 60% of the normal rates applicable to the case.
(c) By writ of mandamus, commanding respondents to release withheld amount of pension and release arrears of remaining portion of the pension and allowances for the intervening period, which has not been allowed so far.
(d) By writ of mandamus, commanding respondents to take disciplinary action against the officer/officers responsible for deliberately circumventing and bypassing the court orders while processing and passing impugned order.
(e) By writ of mandamus, commanding respondents to pay interest @ 20% per annum for withheld amount of pension and also pay adequate amount of compensation to petitioner for the ordeal she has faced due to the illegal and harsh actions of respondents, the compensation being qualified to the tune of Rs. 1.00 lakh."
3. Respondents, in their objections, state that in the facts and circumstances of the case, none of reliefs prayed for by petitioner can be granted. It is insisted that under rules the pension/family pension is available to an employee or his family at the rate equal to the last pay drawn by the deceased Government servant before his death for a period of seven years from the date following the date of death or for the period up to the date on which the deceased Government servant would have attained the age of superann
