1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1635 OF 2009 Mr.Dattatraya Shankar Chavande Aged about 79 years, residing at F/56, Palm Acres, M.P. Road, Mulund (East), Mumbai—400 081. : Petitioner V/s. 1. The Mumbai Port Trust, Shoorji Vallabh Marg, Ballard Estate, Mumbai—400 038. 2. The Board of Trustees of the Port of Bombay, Shoorji Vallabh Marg, Ballard Estate, Mumbai—400 038. Notice to be served on Shri Rajiv Asthana, Chairman, Mumbai Port Trust. 3. Mr.P. Mohanchandran, Secretary, Mumbai Port Trust Shoorji Vallabh Marg, Ballard Estate, Mumbai—400 038. 4. The Union of India, Ministry of Surface Transport, Parliament Lane, Transport Bhavan, New Delhi. : Respondents .... Mr.D.S.Chavande, petitioner in person present. Mr.E.P.Bharucha, Senior Advocate, i/b. M/s.Mulla & Mulla & CBC for respondent nos.1 to 3. 2 Mr.C.J. Joy for respondent no.4. .... CORAM : J.N. PATEL & B.R. GAVAI, JJ. Date of Reserving ) : 08.02.2010. the Judgement. ) Date of Pronouncing) : 19.03.2010. the Judgement. ) JUDGEMENT (Per B.R.Gavai, J.) Rule, returnable forthwith. The learned counsel for the respective respondents waive service. Heard by consent. 2. The petitioner has filed this petition basically for a direction to the respondents for proper calculation of pension and for paying personal pension which was granted to him. 3. The factual background giving rise to the present petition is as under: The petitioner was working with the respondent no.1. On superannuation, the petitioner has retired from the services of the respondent no.1 on 1.10.1987. The respondent no.4 i.e. Union of India on 6.10.1987 granted ad hoc rise to Class I and Class II employees of the 3 Port Trust which was for all purposes. On the said date, the respondent no.4 Union of India had also granted interim relief to Class III and Class IV employees with retrospective effect from 1.1.1986. However, interim relief was not to be counted for any other purposes. It appears that some of the employees working in Madras Port Trust had challenged the decision of the Central Government in not considering the interim relief for the purposes of pensionary benefits. The Madras High Court vide order dated 27.8.1996 allowed the petition holding that interim relief in respect of Class III and Class IV employees of the Port Trust should be counted for all purposes, including pensionary benefits. In accordance with the direction issued by the Madras High Court, the Central Government directed the Port Trusts to consider interim relief for all purposes in respect of Class III and Class IV employees. Contending that in spite of the direction issued by Union of India in pursuance of the judgement of Madras High Court in Writ Petition No.14528 of 1991, the petitioner was not granted benefits of interim relief for the purposes of pensionary benefits, Writ Petition No.453 of 1997 came to be filed before this Court. This Court vide order dated 18.10.2006 found merit in the contention of the petitioner that the respondent no.1 had not considered the interim relief for the purposes of calculation of D.A., L.T. Allowance, H.R.A. and other allowances. This Court also directed that the respondents should consider entitlement of the petitioner for being given 4 the interim relief even for the purposes of pensionary benefits. This Court, therefore, directed the respondent no.1 to reconsider the issue after giving hearing to the petitioner. The Court further directed that the same shall be done within a period of sixteen weeks from the date of the order. In pursuance of the direction issued by this Court in Writ Petition No.453 of 1997, the respondent no.1 passed an order dated 26.6.2008. Being aggrieved thereby, the present petition. 4. We have heard the petitioner in person and Mr.Bharucha, the learned senior counsel on behalf of the respondent nos.1 to 3 as also Mr.Joy for the respondent no.4. 5. It is the basic contention of the petitioner that personal pension which was granted to the petitioner at the rate of Rs.175/- per month could not have been withdrawn by the respondents merely because the interim relief was taken into consideration for pensionary benefits. He submits that personal pension and the periodical reliefs which are granted on the basis of the C.P.I. (Consumer Price Index) were totally two different things and they cannot be inter-linked so as to deprive the personal pension which was granted to the petitioner. He submits that the respondents by the impugned order did not implement the judgement of this Court in Writ Petition No.453 of 1997 dated 18.10.2006 in its proper 5 perspective. 6. As against this, Mr.Bharucha, the learned counsel appearing on behalf of the respondent nos.1 to 3, submits that personal pension was granted in the peculiar facts by Resolution no.476 pf 1992 of the Port Trust. He further submits that the interim relief granted in the year 1986-87 was not taken into consideration for calculation of pension which was worked out by taking C.P.I. 568 as a base. He, therefore, submits that personal pension was granted to protect the drop in pension of the employees so as to compensate for the price rise. He further submits that, however, subsequently in view of the judgement of the Madras High Court, interim relief was taken into consideration for calculating the pension. He, therefore, submits that since after taking into consideration the interim relief, the pension which was payable to the petitioner was more than the earlier pension which he received along with the personal pension, there was no question of continuing the personal pension. 7. This is a second round of litigation. In an earlier round, this Court had allowed the petition filed by the present petitioner, being Writ Petition No.453 of 1997 with a direction to the respondents to re-calculate the benefits given to the petitioner, after giving an opportunity to the petitioner to make his submissions. 6 8. The respondent-Port Trust in pursuance to the said order, by the impugned order, has held that the personal pension was granted in the peculiar facts and circumstances and that considering the interim relief for pensionary benefits, the petitioner was not entitled to personal pension. 9. From the record, it appears that prior to the year 1984, pension was fixed on the basis of Consumer Price Index of 250. There was a pay revision on 1.1.1984 and upon the said revision, pension was fixed taking CPI 455 as a base for the period 1.1.1984 to 30.3.1985. Pension was again revised to CPI 568 for the period from 31.5.1985 to 31.12.1987. However, from Resolution no.476 of 1992 of the Board, it appears that on account of re-fixation, the pension of some of the employees came down and in order to protect the drop in pension, personal pension came to be granted. 10. However, subsequently, in pursuance of the decision of the Madras High Court, interim relief was also taken into consideration for the purpose of pensionary benefits and, as such, the drop in pension was wiped out. It is further to be noted that the benefit of the revised pension after taking into consideration interim relief was given with retrospective effect from 1.10.1987. 7 11. The original pension to which the petitioner was entitled was Rs.1040/-. Personal pension which was given was Rs.175/-. As such, the petitioner was given total pension, including personal pension, at the rate of Rs.1215/- per month. However, subsequently, on account of inclusion of interim relief in the pensionary benefits, the petitioner’s pension was re-fixed at Rs.1250/- per month. It is to be noted that the benefit of this re-fixation has also been granted with effect from 1.10.1987. It can thus be seen that the purpose for which the personal pension was given i.e. drop in pension does not exist on the inclusion of the interim relief for pensionary benefits. 12. It is to be noted that though the earlier pension including personal pension was Rs.1215/-, the pension after inclusion of interim relief was Rs.1250/- i.e. Rs.35/- more per month. Since the personal pension was granted to meet out the peculiar exigency i.e. drop in pension and since that circumstance ceased to exist after the inclusion of interim relief for pensionary benefits, the petitioner cannot claim that the personal benefit should also be continued. As already indicated hereinabove, after the inclusion of interim relief for pensionary benefits, the petitioner’s pension has been increased by Rs.35/- per month. The benefit of such increase has been given with retrospective effect from 1.10.1987. The petitioner 8 was, accordingly, paid the net arrears of pension and pensionary benefits amounting to Rs.41,133/- in the year 1999. We find that the contention of the respondents that the personal pension was given by the Resolution of the Board in exceptional circumstances so as to meet drop in pension on account of re-fixation of salary and after decision of the Madras High Court to include interim relief to all the benefits, including the pensionary benefits, there was no occasion to continue the personal pension is justified. Once the very basis for which the personal pension was granted ceases to exist, there was no occasion for continuing the personal pension. In any event, the benefit of revised pension after taking into consideration the interim relief has been given retrospectively with effect from 1.10.1987 and arrears of amount of which have already been paid to the petitioner. 13. In that view of the matter, we find no merit in the petition and the same is, therefore, dismissed. Rule stands discharged. (J.N. PATEL, J.) (B.R. GAVAI, J.)