FA/2697/2000 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2697 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = STATE OF GUJARAT & ANR - Appellant(s) Versus CR GANDHI - Respondent(s) ========================================= = Appearance : MR PATHIK ACHARYA, AGP for Appellant(s) : 1 - 3. MR BHARAT JANI for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 23/04/2008 ORAL JUDGMENT 1. This appeal is preferred under Section 96 of the Civil FA/2697/2000 2/16 JUDGMENT Procedure Code against the judgement and order passed by the learned City Civil Judge, Court No. 19, Ahmedabad in Civil Suit no. 946/1990 dated 24th March, 2000 by which the learned Judge partly allowed the suit of the respondent and held that the order passed by the appellant - State rejecting the request of the respondent for grant of compassionate pension is bad and illegal. 2. Being aggrieved by the order passed by the learned Judge, the appellant - State has preferred the present appeal. The short facts, giving rise to the present appeal, are stated as under: 2.1. The appellants are original defendants and respondent is the original plaintiff in the suit. The suit was filed by the plaintiff for declaration and direction contending inter alia that the charge sheet issued by the State on 21/08/1981 was replied on 07/10/1981. The evidence was recorded in the year 1982 and show cause notice was served to the plaintiff on 31/03/1983. Ultimately, the defendants passed an order to remove the plaintiff from service on 04/02/1985. After removal from service, the plaintiff submitted an application for FA/2697/2000 3/16 JUDGMENT compassionate pension and gratuity on 08/07/1985. The gratuity of the plaintiff was released but the request to grant compassionate pension was rejected by the State on 07/10/1985. A request to reconsider the case was made by the plaintiff on 17/03/1987 to the State but the same was rejected by the State on 27/08/1987. Even the representation made by the plaintiff to the concerned Minister and the Chief Minister was also not considered. 2.2. It is contended by the plaintiff that he is legally entitled to get the benefit of compassionate pension as well as gratuity as per the provisions of law. It is submitted that the decision of the State rejecting his application is arbitrary and against the principles of natural justice and the order passed by the State is a non-speaking order, and, therefore, it requires to be quashed and set aside. 2.3. The defendant - State filed written statement vide Exh. 5 wherein it is contended that the suit itself is not maintainable and the Court had no jurisdiction to decide the suit and the suit is time-barred. It is contended that on proper interpretation of Rule 186(a) of the Bombay FA/2697/2000 4/16 JUDGMENT Civil Services Rules, a Government servant who is removed or required to retire from Government service on the ground of mis conduct or insolvency can be granted no pension other than compassionate pension. It is submitted that the request to grant the compassionate pension was rejected as the charges were proved against the plaintiff and since they were of grave nature, the request for compassionate pension was turned down. The decision of the Government was as per the existing Rules and, therefore, as there is no substance in the suit, the suit is liable to be dismissed. The learned Judge framed the issue vide Exh. 11 and after considering the entire gamut of oral deposition and documentary evidence, held that the plaintiff is legally entitled to grant of compassionate pension from the date of his removal from service, in view of the provisions contained in Rule 274 of the Bombay Civil Services Rules. The learned Judge further held that initially the request to grant compassionate pension was rejected on 08/07/1985 but subsequently, the plaintiff made an application to reconsider the said decision and ultimately, the government took the decision on 27/08/1987 and rejected FA/2697/2000 5/16 JUDGMENT the application preferred by the plaintiff. However, the learned Judge held that considering the period of limitation from 27/08/1987, the suit was filed within the period of three years as provided under Article 58 of the Limitation Act and, therefore, the suit cannot be dismissed on the ground that the same is not maintainable. The learned Judge on considering the deposition adduced by plaintiff, Choitaram Rupchand Gandhi, vide Exh. 12, and other documentary evidence, the order passed by the Government dated 04/02/1985, vide Exh. 15, plaintiff's letter to the State dated 08/07/1985, recommendation letter of the Director of Medical Services dated 16/07/1985, vide Exh. 13, letter of Family, Health and Welfare Department dated 07/10/1985, vide Exh. 29, letter by plaintiff to the Minister of Health, vide Exh. 30, letter by the government dated 24/03/1986, vide Exh. 16, letter by the plaintiff dated 17/03/1987, Exh. 31, letter by the government dated 27/08/1987, vide Exh. 17, letter by the plaintiff dated 29/09/1989, vide Exh. 32, Government Circular regarding compassionate pension dated 04/12/1962, Exh. 18, notice dated 11/12/1989, vide FA/2697/2000 6/16 JUDGMENT Exh. 34, letter by the Director of Medical Services dated 02/01/1990, vide Exh. 19 etc. held that the plaintiff, in view of the overwhelming documentary evidence and the deposition adduced vide Exh. 12, is entitled to get compassionate pension as provided under Rule 274 of the Bombay Civil Services Rules and, therefore, the learned Judge partly allowed the suit and held that the order passed by the State, rejecting the request by the plaintiff for grant of compassionate pension, is bad and illegal. 3. The learned AGP appearing on behalf of the State vehemently submitted that the learned Judge has not interpreted Rule 274 of the Bombay Civil Services Rules in a proper perspective. On bare perusal of Rule 274 of the Bombay Civil Services Rules, it becomes clear that the government is given discretion for granting compassionate pension to the person who is removed or who is required to retire from government service on the ground of misconduct or insolvency. In view of the discretion vested with the Government, the Government thought it fit not to grant compassionate pension to the plaintiff, in view of grave charges levelled against the FA/2697/2000 7/16 JUDGMENT plaintiff in the departmental inquiry which was held against him. The learned AGP submitted that the State Government initially passed the order rejecting the request made by the plaintiff on 07/10/1985. After lapse of nearly two years, the plaintiff made a request on 17/03/1987 to reconsider the earlier order passed by the State Government on 07/10/1985. The State Government on reconsideration passed an order of rejection on 27/08/1987. The cause of action can be said to have been arisen to the plaintiff on 07/10/1985 and those facts were also reflected in the plaint filed by the plaintiff. On perusal of paragraph 11 of the plaint, it becomes clear that the cause of action had arisen on 04/02/1985 when the plaintiff was removed from service, on 08/07/1985 when the plaintiff applied to the government for compassionate pension and gratuity and also when the government rejected the application of the plaintiff on 07/10/1985. Thus, the learned AGP submitted that the period of limitation would start to run from 07/10/1985 when the application for compassionate pension was rejected by the State Government. As per Article 58 of the Limitation Act, the plaintiff ought to have filed the suit FA/2697/2000 8/16 JUDGMENT within the period of three years from 07/10/1985. As the suit was not filed in time, the learned Judge ought to have dismissed the suit filed by the plaintiff on the ground of limitation. As the learned Judge has committed egregious error in holding that the suit is filed within time, the same requires to be reconsidered and the order passed by the learned Judge deserves to be quashed and set aside. 4. The learned AGP representing the State has placed reliance on the judgement rendered in the case of the STATE OF PUNJAB AND ANR Vs. BALKARAN SINGH reported in (2006) 12 SCC 709 in support of the contention that the period of limitation would start to run from 07/10/1985 and as the suit was not filed within time, it was liable to be dismissed. Considering the ratio laid down in the aforesaid judgement, the learned AGP submitted that the appeal requires to be allowed and the order passed by the learned Judge be quashed and set aside. 5. The learned advocate appearing for the respondent submitted that the trial Court has considered various documents, which were produced during the course of FA/2697/2000 9/16 JUDGMENT pendency of the suit and the deposition adduced by Choitaram Rupchand Gandhi, vide Exh. 12 in holding that the suit filed by the plaintiff is maintainable. The learned Judge has rightly held that the first order was passed on 07/10/1985 and, thereafter, the request was made by the plaintiff to reconsider the case by the letter dated 17/03/1987 but after reconsidering or reviewing the earlier order, the State Government passed another order dated 27/07/1987 rejecting the review application and, therefore, the period of limitation would start to run from 27/08/1987. The suit was filed on 22/02/1990 and, therefore, as provided under Article 58 of the Limitation Act, it was filed within time. The learned advocate submitted that in view of the provisions contained in Rule 274 of the Bombay Civil Services Rules, the learned Judge has rightly allowed the suit filed by the plaintiff in part and directed the defendant - State to grant compassionate pension. The learned advocate submitted that on perusal of the evidence on record of the case, no interference is called for in the appeal preferred by the State and the appeal is liable to be dismissed. FA/2697/2000 10/16 JUDGMENT 6. The learned advocate has placed reliance on the judgement rendered in STATE OF GUJARAT AND ORS Vs TUSHAR C. SHAH in LETTERS PATENT APPEAL No. 1798/2004 in SPECIAL CIVIL APPLICATION No. 11076 of 1994 by the Division Bench of this Court (Coram : G.S. Singhvi & A.S. Dave, JJ.) wherin the Division Bench held that the concerned authority did not discuss any of the objections raised by the respondent qua the proceedings of inquiry and the findings recorded by the Inquiry Officer. It does not discloses the reasons recorded by it, and, therefore, the failure of disciplinary authority to objectively consider the representations made by the respondent resulted in to grave violation of Rules and natural justice and consequential failure of justice. In view of the aforesaid facts and circumstances, the appeal was dismissed and direction was given to the State Government to pass fresh order keeping in view the statement made by the learned AGP. As a sequel to the passing of order of punishment of compulsory retirement, the respondent shall become entitled to pensionary benefit in accordance with Rule 186 of the Bombay Civil FA/2697/2000 11/16 JUDGMENT Services Rules as applicable to the State of Gujarat. Needful be done within a period of three months from the date of receipt of the certified copy of this order. 7. I have heard learned AGP Mr. Pathik Acharya for the appellants and learned advocate Mr. Bharat Jani for the respondent at length and in great detail. I have perused the reasons assigned by the learned Judge while partly allowing the suit filed by the plaintiff and the documents, which are relied upon by both the sides, are also carefully perused by me. 8. The plaintiff filed the suit for declaration and with a prayer to give direction to the defendant - State to grant compassionate pension. The departmental inquiry was initiated against the plaintiff on 21/08/1981. The evidence was recorded during the year 1982 and show cause notice was served on the plaintiff on 31/3/1983 and ultimately, the State removed the plaintiff from service on 04/02/1985. The plaintiff was granted gratuity but was denied compassionate pension as per the order dated 07/10/1985. The plaintiff made a request vide letter dated 17/03/1987 but the same was rejected by the State FA/2697/2000 12/16 JUDGMENT Government on 27/08/1987. In view of the aforesaid facts and circumstances, the plaintiff was constrained to institute the present suit. The learned Judge has considered the entire gamut of documentary evidence and oral deposition adduced by Chiotaram Rupchand Gandhi, vide Exh. 12. It has been strongly contended by the learned AGP representing the State that initially the order was passed on 07/10/1985, thereafter, the plaintiff wrote the letter on 17/03/1987 to reconsider the case of the plaintiff but the State government after reconsidering the case passed an order on 27/08/1987 rejecting the representation preferred by the plaintiff. The learned advocate emphasised that the period of limitation of three years would commence from 07/10/1985 and the suit ought to have been filed in the year 1988. However, considering the period of limitation, from 27/08/1987, the suit has been filed in the year 1990 and, therefore, the suit is not barred by limitation. Looking to the letter dated 07/10/1985, it becomes clear that it was a letter written by the Under Secretary to the Government, Health and Family Welfare Department to the Accountant General, Multi storied Building, Lal Darwaja, Ahmeabad, FA/2697/2000 13/16 JUDGMENT wherein it has been stated that the Government has decided against the payment for compassionate pension to Dr. C.R. Gandhi, Ex. Assistant Director of Medical Services, E.S.I. Scheme, Ahmedabad. Thereafter, the plaintiff made an application to the Health Ministry on 17/03/1987 to reconsider his case. The Under Secretary to the Government, Health and Family Welfare Department passed an order dated 27th August, 1987 stating therein that there are no extenuating circumstances to reconsider or review the decision as communicated on earlier occasion and, therefore, the request is not accepted by the Government. On perusal of these two orders, it becomes clear that after rejection of compassionate pension on 07/10/1985, the plaintiff requested the government to reconsider his case and his case was reconsidered and on review, the government took the decision to reject the application. In view of the aforesaid facts and circumstances, the learned Judge has rightly held that the period of limitation would start to commence from 27/08/1987 and the suit was filed on 20/02/1990 and, therefore, it was filed within time and there is no substance in the submission canvassed by the FA/2697/2000 14/16 JUDGMENT learned AGP for the State and, therefore, the contention deserves to be rejected and, it is, hereby, rejected. 9. The learned AGP for the State has further contended that even on bare perusal of Rule 274, it confers discretionary powers to the State Government to grant compassionate pension to the person who is removed or required to retire from government service on the ground of misconduct or insolvency. No doubt, Rule 274 gives discretionary power to the State Government to grant compassionate pension to the concerned person or to a person who is required to retire from service. On perusal of the documentary evidence, more particularly, the letter written by the Director of Medical Services, E.S.I. Scheme, Ahmedabad to the Secretary to the Government, Health and Family Welfare Department, Gandhinagar dated 16/07/1985, it becomes clear that the Director of Medical Services had strongly recommended for compassionate pension equal to 2/3rd of invalid pension and 2/3rd gratuity as per the Rules cited by Dr. C.R. Gandhi and he has further requested the government to issue necessary order in the matter as per the request of FA/2697/2000 15/16 JUDGMENT Dr. C.R. Gandhi. Considering Rule 274 and the recommendatory nature of the letter written by the Director of Medical Services, the plaintiff ought to have been granted compassionate pension. The learned Judge has discussed in great detail about the documentary evidence and the recommendatory letter written by the Director of Medical Services and rightly held that the plaintiff is entitled to get compassionate pension, as claimed by him. In view of the aforesaid facts and circumstances, there is no substance in the submissions canvassed by the learned AGP on behalf of the State and, therefore, the same is hereby rejected. 10. Considering the overwhelming evidence on record of the case and the reasons assigned by the learned Judge in partly allowing the appeal and granting compassionate pension to the plaintiff, I do not consider it a fit case to interfere with the order passed by the learned Judge. For the foregoing reasons, the appeal fails and it is dismissed. Interim relief granted earlier stands vacated. (H.B. ANTANI, J.) FA/2697/2000 16/16 JUDGMENT siji