Validity of tribe certificate doesn’t impair the legal heirs for getting pension: High Court of Bombay

 904.WP.221.21.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.221 OF 2021 2. 1. Nana @ Narsing Vishwarasrao Nayak Age : 40 years Occ. Business R o Tapdiya Estate Hingoli Rajkumar @ Raju S o Vilas Nagre Age : 39 years Occ Agril. R o as above Kailas S o Subhash Manbolkar of the Code of Criminal Procedure has been cancelled post a request put up by the 904.WP.221.21.odt prosecution to add in addition to the earlier sections under the Indian Penal Code the offences punishable under Sections 3 and 4 of the Maharashtra Control of Organized Crime Act 1999after a sanction under Section 21 of the MCOC Act was received The learned Senior advocate Mr. Deshmukkh would submit that the petitioners were granted a regular bail and in the absence of any supervening circumstance or a breach of terms and conditions subject to which the bail was granted it could not have been cancelled. He would submit that merely because the provision of the MCOC Act were invoked at a later point of time that would not constitute a supervening circumstance Liberty ought not have been curtailed in the manner in which it had been done. There are circumstances to indicate that the petitioner is being falsely involved under a serious charge. There is material to prima facie demonstrate that the sanctioning authority was perhaps hand in gloves with the original informant. A tainted sanction is not a sanction in the eye of law The learned Senior advocate would further point out that reliance placed by the learned Judge in the decision of Sarang Arvind Goswamy Vs. State of Maharashtra 2005Mh.L.J. 774 and Pradip Ram Vs. The State of Jharkhand 2019SCC 326 is misplaced. Both the decisions can be distinguished on facts. As can be seen the accused therein though were granted bail were already in custody in some other crime which is not a fact situation in the matter in hand. The learned Senior advocate would further point out that in the case of Narendra @ Naresh 904.WP.221.21.odt Kavdidas Chavan Vs The State of Maharashtra and Anr. Criminal WP No.165 2017 this Court in the similar set of facts refused to cancel the bail and the view taken in that be subscribed even in the matter in hand The learned Prosecutor and the learned advocate Mr. Rathi for the original informant strongly oppose the Writ Petitions and submit that invoking a serious charge at later point of time is indeed a supervening circumstance the cognizance of which ought to be taken for cancelling the bail. They submit that not only in the case of Sarang A. GoswamyNo.7 2016 and Karan Ranjit Paropate Vs. State of Maharashtra and Ors. Criminal Writ Petition No.1029 2017 this Court has taken same stand referring to the decision in the case of Sarang A. Goswamy. Therefore there is no illegality in the impugned order which merely follows the decision in the case of Sarang A The learned Prosecutor and the learned advocate Mr. Rathi would also point out that the decision in the case of Narendra @ Naresh Kavidas Chavanwhich is later in point of time does not refer to the earlier decision of this Court in the case of Sarang A. Goswamy and the learned Judge while passing the impugned order has rightly refused to rely upon the former decision The learned Prosecutor and the learned advocate Mr. Rathi would lastly submit that the decision of the Supreme Court in the case of 904.WP.221.21.odt Pradip Ramnow sets the controversy at rest. They would point out that in fact in such a fact situation where some aggravated offences are invoked at later point of time after grant of bail a relief of cancellation of bail under Section 439of the Code of Criminal Procedure is not required and only a permission to arrest the accused who has been granted bail is contemplated. The learned advocate would pertinently point out the fact that earlier decision in the case of Hamida Vs. Rashid 1 SCC 474 has been referred to wherein it has been specifically observed that after addition of serious non cognizable offences the accused who has been granted bail is required to surrender and again apply for bail under the newly added offences. They would therefore submit that though there could be some error in articulating the prayer in the application whereby bail was sought to be cancelled the procedure being hand maid of justice the impugned order can be read to mean that what was asked before the learned Judge and what was actually granted was merely a permission to arrest the petitioners I have carefully considered the rival submissions and the decision cited at the bar. The material facts are not in dispute. The petitioners were arrested when the offences under the Indian Penal Code Arms Act and the Maharashtra Police Act were invoked. They were granted regular bail. It is thereafter that a sanction was solicited and obtained under Section 21 of the MCOC Act and it is thereafter that the application was filed seeking cancellation of bail upon which the impugned order was passed 904.WP.221.21.odt So far as extending an opportunity of being heard before passing of the impugned order though it is apparent that the learned advocate who was supposed to argue the matter on behalf of the petitioners could not be extended sufficient opportunity of being heard the impugned order elaborately discusses the events preceding to passing of the impugned order. The learned Judge has laboured to point out as to how several opportunities were extended to petitioner s advocate to make submissions not only physically but even through video conferencing facility but the opportunity was not availed of Pertinently simultaneously with the application for cancellation of bail even the application filed by the petitionerswas agreed to be decided. As can be seen from the impugned order it was with the common understanding that the argument of both the sides were heard on both these applications with a further understanding that if the application Exhibit 15) by which the petitioners had prayed for making a reference to this Court under Section 395 of the Code of Criminal Procedure was prayed for would be decided first in point of time and if it was to be allowed decision on the application for cancellation of bail would be deferred. It clearly implies that if the applicationwas to be rejected this application for cancellation of bail was to be readily decided. It is with this understanding that the parties had allowed the learned Judge to proceed and therefore the petitioners cannot be allowed to make any capital on the ground that they were not extended an opportunity of being heard 904.WP.221.21.odt Now coming to the merits of the impugned order the issue in my considered view is no longer res integra. The decision in the case of Pradip Ramclearly settles the controversy. Suffice for the purpose to reproduce the points for determination formulated by the Supreme Court and its decision thereon “7. From the submissions of the learned Counsel for the parties and the pleadings on the record following are the issues which arise for consideration in these appeals i) Whether in a case where an Accused has been bailed out in a criminal case in which case subsequently new offences are added is it necessary that bail earlier granted should be cancelled for taking the Accused in custody 29. In view of the foregoing discussions we arrive at following conclusions in respect of a circumstance where after grant of bail to an Accused further cognizable and non cognizable offences are added i) The Accused can surrender and apply for bail for newly added cognizable and non bailable offences. In event of refusal of bail the Accused can certainly be ii) The investigating agency can seek order from the court Under Section 437or 439of Code of Criminal Procedure for arrest of the Accused and his iii) The Court in exercise of power Under Section 437of Code of Criminal Procedure can direct for taking into custody the Accused who has already been granted bail after cancellation of his bail. The Court in exercise of power Under Section 437as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non cognizable offences which may not be necessary always with order of cancelling of earlier bail 904.WP.221.21.odt iv) In a case where an Accused has already been granted bail the investigating authority on addition of an offence or offences may not proceed to arrest the Accused but for arresting the Accused on such addition of offence or offences it need to obtain an order to arrest the Accused from the Court which had granted the bail 30. The issue No.1 is answered accordingly.” As can be noticed it has now been emphatically concluded that after an accused is released on bail and some serious offences are invoked at a later point of time there is no question of seeking any cancellation of bail and the investigating agency would only be required to apply for permission from the Court which granted the bail to arrest the accused. It is important to note that in the case of Sarang A. Goswamy Vijendra M. Kuril and Karan R. Paropatethis Court has proceeded to look upon this as supervening circumstance entitling the Court granting the bail to cancel it. Even the learned Judge while passing the impugned order has proceeded on the same line relying upon the decision of Sarang A Goswamy. But as can be appreciated in view of the decision in the case of Pradip Ram cancellation of bail in such a fact situation is not True it is that the application on which the impugned order was passed perhaps in ignorance of the decision in the case of Pradip Ram supra) proceeded with and decided the request of cancelling the bail and even the learned Judge has accepted the prayer. However in my considered 904.WP.221.21.odt view instead of proceeding on the technicalities when the law does not require cancellation of bail and merely requires a permission to arrest the accused the wording of the prayer in this application can be interpreted to mean that what is contemplated in law was in fact sought by the Needless to state that the petitioners are not being put to any prejudice merely because the request by the prosecution can now be interpreted within the four corners of the law in the light of the observation in the case of Pradip Ram (supra Considering the above state of affairs I find no illegality in the impugned order. At the most it can be clarified that it be read as not amounting to cancellation of bail but granting permission to the Investigating Officer to arrest the petitioners The Writ Petitions are dismissed. The Rule is discharged. (MANGESH S. PATIL J 

Summary: The legal heirs are entitled to the benefits of family pension to the widow from the date of his death. A division bench comprising of Justice Ravindra V. Ghuge &amp; S.G. Mehare adjudicating the Sunita Late Pradip Thakar v. The State Of Maharashtra And Others (WRIT PETITION NO.6485 OF 2020) dealt with an issue of whether to allow the present writ petition or not. In the present case, the petitioner is a widow of an employee named Pradip Thakar who belonged to a Scheduled Tribe community. He was issued with the tribe certificate by the Executive Magistrate, Kallam. On 01.03.1982, he was appointed as “Chaukidar”, a post reserved for the Scheduled Tribe category with respondent No.3. He was promoted as “Supervisor” in 2009. He moved his application for seeking validation of his tribe he passed away on 06.11.2019, while being in employment. through the Employer but before the Committee could decide his claim, he passed away on 06.11.2019, while being in employment. The widow of the deceased moved applications dated 24.12.2019, 02.03.2020, and 24.08.2020 to the respondent authorities seeking the release of the family pension and payment of all retiral benefits like provident fund, gratuity, leave encashment, medical reimbursement, overtime, etc. It is contended by the petitioner that respondent No.3 orally intimated to her that as her husband was appointed on a post reserved for the Scheduled Tribe category and since he did not submit his validity certificate, steps to grant family pension cannot be taken until such validity certificate is produced. Then on 08.07.2020 and 27.07.2020, the petitioner requested the committee, seeking a decision on her late husband’s pending claim. On 05.08.2020, Committee closed the file of the petitioner’s husband since he had passed away. Also, the daughter of the petitioner also made an application on 08.07.2020 to respondent No.3, praying for a compassionate appointment. By the communication dated 10.08.2020, respondent No.3 informed her that as her father had not tendered the validity certificate of belonging to the Thakar tribe, her application for compassionate appointment needs to be kept pending in view of the Government Resolution dated 15.06.2020. The Respondent submits that this petition is not adversarial litigation to the Government. As the husband of the petitioner did not tender the validity certificate, the respondent authorities are helpless. The court held that there is no dispute that the deceased Pradip Thakar had joined duties on 01.03.1982 and he had passed away on 06.11.2019 after putting in 37 years in employment. His widow would, therefore, be entitled for family pension. Also the court directed that – (a) The Employer would process the pension papers for grant of family pension to the petitioner and the arrears of family pension shall be paid and payment of regular monthly pension shall commence, on or before 30.10.2021. (b) Insofar as the provident fund payments are concerned, the petitioner will have to approach the Provident Fund authorities for release of such funds and in the event of there being no other legal impediment, the Provident Fund authorities would also do the needful, on or before 30.10.2021. (c) Insofar as the gratuity, leave encashment, medical reimbursement and overtime bills are concerned, respondent No.3 shall do the needful and clear such dues as per rules. In the event of there being any dispute with regard to either of these payments, the petitioner would be at liberty to approach the statutory authorities or avail of a remedy as may be prescribed in law.