Harendra Chandra Debnath VsUnion of India

Deepak Gupta, C.J.—By means of this petition, the petitioners have prayed for grant of pension and family pension in respect of the deceased, Harimohan Debnath. The undisputed facts are that, Harimohan Debnath, after a process of selection joined as a Daily Rated Worker (Cane & Bamboo Work) on no work no wage basis at wages of Rs. 10/- (ten) per day on purely ad hoc basis with the Director, Regional Design Centre, camp at Agartala. At that time, the date of birth of Harimohan Debnath was taken to be 17.03.1948 meaning that he was more than 26 (twenty six) years of age at the relevant time. Harimohan Debnath was appointed as skilled Daily Rated Worker vide another order dated 27.01.1978 in the scale of Rs. 19/- (nineteen) per day. He was later interviewed and in the letter calling him for interview, he was asked to bring his original certificates, testimonials with regard to qualification, age and experience. Pursuant to this interview, Harimohan Debnath was selected vide order dated 15.07.1978 as Assistant Craftsman in the Advanced Training in Fine Cane & Bamboo Handicrafts and Allied Technology, All India Handicrafts Board, Agartala w.e.f. 22.06.1978, in the pay scale of Rs. 380-560/-. Thus the appointment of Harimohan Debnath on daily wages was followed by his regular appointment. He was confirmed, promoted and served the department till the year 2003.

It appears that in the meantime some objections were raised and the date of birth of Harimohan Debnath was changed from 17.03.1948 to 02.03.1943. This change was made on the advice of the audit and there is no material to show that this change was made after giving notice to Harimohan Debnath.

Be that as it may, the fact is that taking the date of birth as 02.03.1943, Harimohan Debnath was retired in the year 31st March, 2003. However, pension was not released to him on the ground that when he was initially appointed he was overage. According to the department, the maximum age for appointment in the department was 25 years and since he was born on 02.03.1943, in 1978 he was more than 35 years of age and overage by more than 10 years. Even if his date of birth is taken to be 17.03.1948 years, then also he is overage.

We are dealing here with an employee, who was virtually illiterate and working at the lower most rung. He was a Craftsman. He had produced all his records before the authorities. There is no allegation whatsoever that he produced any false documents or that he misled the department into believing that he was within the age limit.

The mistake, if any, in giving him appointment is solely of the officers, who offered him employment and not of Harimohan Debnath. If somebody has to be penalized, it those should be those officers and not this poor worker, who is working at the lower most rung as a Class-IV employee.

We are clearly of the view that the action of the respondents-board in denying pension, initially to Harimohan Debnath and later family pension to his family members is totally unbecoming of a model employee. When a poor illiterate person joins the department, it is at mat time that his testimonials should have been checked and he should have been told that he cannot be offered of appointment, because he was overage. We do not know what was the situation in the year 1974? There may not have been any other suitable workers available to man this post. If the matter had been considered in the year 1974, then some official may or may not have granted relaxation of age in favour of Harimohan Debnath. If relaxation of age had not been granted, he would not get any appointment. However, in this case, he was appointed and continued to work as such till 31st March, 2013. If we take into consideration the time which he worked on daily wages then he has put in 29 years of service in the department.

The defence of the department is only that no relaxation of age was given when Harimohan Debnath was appointed and such prayer for relaxation has been rejected at this stage.

We are clearly of the view that the matter whether relaxation has to be given or not should have been considered when he was offered of appointment and the mere offer of appointment will raise a presumption that the appointing authority had granted relaxation. After 29 years, a department cannot turn around and tell the employee, that too a lowly paid Class-IV employee that his initially appointment is against the rules and therefore, he is not entitled to get any retiral benefit. We, therefore, allow the writ petition and direct the respondents to fix the pension/family pension as per the rules applicable on or before 31st October, 2014. The entire retiral benefits shall be paid along with interest @ 9% per annum latest by 31st December, 2014. In case the dues found payable are not paid by 31st December, then the interest shall be payable @ 12% per annum from the date when the amount fell due till payment in the aforesaid terms.

Accordingly, the writ petition is disposed of in the aforesaid terms.