1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.861 OF 1994. PETITIONER : Shrawan Balaji Patil, Retired UDC R/o Benoda, Tahsil Warud, District Amravati. -vs- RESPONDENTS: Khadi and Village Industries Commission, Irla Road, Vile Parle (West), Bombay -400 056 by its Chief Executive Officer. Office Notes, Office Memoranda of Coram, Court s or Judge s appearances, Court's orders or direction Orders and Registrar's orders. Shri Anand Parchure, Advocate for the petitioner. Shri G. G. Modak, Advocate for Respondent. Coram : B.P.DHARMADHIKARI AND F.M. REIS, JJ. Dated : 1st SEPTEMBER, 2009. The Petitioner before this Court is seeking a direction to Respondent to reassess his gratuity and compute his pension after taking into account his total service from 11-3-1959 to 30-09-1990. It appears that the Respondent has taken into account his service 2 from August 1962 only for the purposes of calculating his retirement benefits. Advocate Shri Parchure for the petitioner has pointed out that the petitioner was initially appointed vide Order dated 16-3-1956 and worked at Rewa Center of Khadi Gramodyog Commission. Thereafter, the petitioner was transfered in October 1959 to Peripatetic Party Schemes, Khadi and Village Industries Commission, Surguja where he worked from October 1959 to 1963. From 1963 till August 1968, the petitioner worked at Indore Khadi Sangh Indore. The petitioner was given an appointment order dated 7-8-1968 asking him to join as Store Keeper by Khadi and Village Industries Commission at Jodhpur. It is not in dispute that service rendered thereafter, is being considered for the purposes of computation of terminal benefits upon superannuation of the petitioner. As the petitioner has worked continuously from 3 24-9-1959 till August 1968, the said period also according to the petitioner needs to be treated as a part of qualifying service. Advocate Shri Modak for the respondent has invited our attention to the provisions of Khadi and Village Industries Commission Act, 1956 to urge that the said Act requires the respondent to prepare two separate budgets one in relation to Khadi and other in relation to Village Industries. He invites our attention to the Schedule appended, to point out that the respondent was undertaking various schemes temporarily and according to him, the petitioner was working under said Scheme, and they are not the part of regular establishment of the respondent till August 1968. He states that the petitioner was for the first time regularly appointed in 1968 as the employee of the respondent, and hence, in terms of the Pension Regulations framed under Section 27 of Khadi and Village Industries Commission Act, 4 1956, his earlier service could not be looked into. He has also invited our attention to proviso of Pension Regulation 11 and Regulation 12 for the said purpose. He also pointed out that in fact, the petitioner had filed the proceedings before the Labour Court at Jaipur to claim arrears of salary for the period from 1-4-59 to 17-9-68 and that was dismissed some time in the year 1974. According to him, therefore, in this background, the relief sought for is misconceived and the petition is liable to be dismissed. Perusal of Pension Regulations mentioned above particularly Regulation No.11 shows that the qualifying service of employee commences from the date he takes the charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. However, the proviso thereto requires that such officiating or 5 temporary services must be uninterrupted and followed by confirmation against a permanent post under the Commission. The petitioner has not pointed out that he rendered any such uninterrupted service, and it was followed by confirmation against any permanent post under the Commission. Even if it is held that the Pension Regulations have come into force subsequently, still the petitioner has to demonstrate that he was appointed against the post and he continued uninterruptedly thereafter. Under Regulation 12, the service of employee does not qualify unless his duties and pay are regulated by the Commission or under conditions determined by the Commission. For Regulation 12(2), the expression service has been defined to mean the service under the Commission and paid by the Commission from the funds of the Commission and it also includes the previous continuous service of a Commission s employee in the All India Khadi 6 and Village Industries Board and where the service under the said Board is followed without a break in service in the Commission, but does not include service in a non pensionable establishment under the Commission unless such service is treated as qualifying service by the Commission. It is not in dispute that vide Pension Regulations framed under Section 27, the Pension Scheme has been for the first time extended to the employees of the Respondents. Thus, the Petitioner has to work out his right under Regulation 11 and 12 to show his entitlement to the Pension. Viewed in this background, the question arises whether the services, prior to 1968 whether continuous or not, which were rendered by the petitioner in Peripatetic Party Schemes, can be treated as service under the Commission for the purpose of these Regulations. During hearing, our attention has been invited to standing order No.1440 dated 7 7-8-1989. The said standing order is on the subject of Counting of trading service as qualifying service under the Pension Regulations 1984. Under Paragraph 2 thereof, the Resolution in the Meeting dated 29-6-89 passed by the Commission has been reproduced and said Resolution shows that the Commission had decided that the Trading service of such persons who are transferred from Trading to regular establishment, prior to introduction of Pension Scheme may be considered as qualifying service for the purpose of pensionary benefits. It appears that the petitioner was on 16-3-1956 appointed in the Trading services. However, the petitioner himself is in the representation addressed to his employer on 19-2-1985 mentioned that in June 1966, the Commission relieved all the employees appointed in Peripatetic Party Schemes of the different Samities of the Commission from its services and only four 8 persons from Madhya Pradesh were continued. The details of his service given by the petitioner show that according to him, at the relevant time, he was at Indore i.e. in Madhya Pradesh. He has further stated that because three persons were retained, he met the Chairman of the Respondent and pointed out the facts. He has further stated that on 12-8-1968, in the Office at Mumbai, Committee of three Officers was formed for taking the decision in his case, and after considering his previous service, without any interview, he was given the appointment letter as a Senior Clerk in the Office of the Regional Border Development, Indore. Copy of the said letter is produced on record and it is dated 7-8-1968. This letter mentions that the petitioner was appointed as a Store Keeper and it also mentions that the post, on which he was appointed, was purely temporary and appointment was on probation for a period of 9 six months. Thus, as per his representation, there is a break in service of the petitioner from June 1966 till he was appointed in pursuance of the order dated 7-8-1968. It is to be noted that the petitioner has in his petition also mentioned that he worked at Indore Khadi Sangh continuously from 1963 to August 1968. In his above mentioned representation, he has also stated that he was not paid his salary for the period from July 1968 to 20th August 1968, and that salary is paid to him in 1974. Little later, he has also mentioned that he worked on consolidated pay for 10 years and thus, was deprived of his Provident Fund and other benefits. The fact that he filed a case before the Labour Court to recover the arrears of salary and that case was dismissed is already mentioned by us above. Looking to the position, we find that the petitioner is not in a position to bring on record sufficient material to enable us to 10 conclude that his earlier service can be and needs to be clubbed with his appointment from 7-8-1968. As such, as the petitioner is failing to discharge the burden upon him, we are not in a position to grant any relief to him. Petition is, therefore, dismissed. No costs. JUDGE JUDGE /Muley/