Mst. Shehnaz Khan vs Union of India (UOI) and Others

Prakash Tatia, J.—Heard learned Counsel for the parties.

This petition has been preferred by wife of the deceased employee Akhtar Khan who initially was discharged from service vide order dated 29.6.2000 where after final clearance was passed on 6.7.2000. The above two orders dated 29.6.2000 and 6.7.2000 were challenged by the deceased Akhtar Khan in his life time by preferring writ petition No. 2150/2000. The said writ petition was allowed by this Court vide judgment dated 28.10.2003 and order of the discharge of the petitioner from service dated 29.6.2000 and the order of final clearance dated 6.7.2000 were quashed specifically. This Court vide said judgment directed to respondents to consider the reply filed by the petitioner and pass a fresh order in accordance with law. After decision of the said Akhtar Khan''s petition No. 2150/2000 vide judgment dated 28.10.2003 again the respondents passed the order which is dated 27.3.2004 discharging the petitioner from service.

This order was communicated to the petitioner vide communication dated 19.5.2004, copy of which is placed on the record as Annex. P-4. The employee Akhtar Khan died and, thereafter petitioner''s wife had preferred this writ petition as the respondents have rejected her representation vide Annex, P-6, for grant of pensionary benefit and issue of discharge certificate. The petitioner again submitted representation which has also been vide Annex. P-10. The petitioner''s husband and petitioners claim for pensionary benefits have been rejected on the ground that the deceased employee was enrolled in Indian Airforce on 23.4.1984 and was discharged from service on 19.7.2000, the period rendered in service is short for the qualifying service to earr service pension for NC (E) which is 20 years.

Learned Counsel for the petitioner vehemently submitted that respondents has rejected the petitioner''s prayer for pension on wrong premises and order to deny pensionary benefits to the petitioner''s husband and then to petitioner is in gross violation to the decision of this Court dated 28.10.2003 . It is submitted that inspite of the fact that order of discharging the petitioner from service on 29.6.2000 and consequencly, the final clearance order dated 6.7.2000 have been quashed, yet the respondents are either under impression that those orders are in force or they deliberately gnored those orders who and denying the pensionary benefit to the petitioner. It is also submitted that the petitioner was discharged from service under the Rules of 1969 and under Clause (k) given in the table under Sub-rule 2 of Rule 15 and this discharge is not to punishment as defined by Rules 1969. It is also submitted that petitioner''s since was appointed in the service on 23.4.1984, therefore, he completed qualifying service on 23.4.2004 before the order dated 19.5.2004 was communicated to the petitioner.

Learned Counsel for the respondents vehemently submitted that the petitioner was initially discharged from 29.6.2000 and this Court though quashed the said order but remanded the matter to the authority concerned for passing a fresh order in accordance with law. The authority concerned after considering the reply of the petitioner''s husband reached to the same conclusion which was the conclusion arrived on 29.6.2000. Learned Counsel for the respondents further submitted that even if the subsequent order is required to be taken into account then that order was passed by the competent authority on 27.3.2004 which is a month before the petitioner''s 20 years service completed. It is submitted that in view of the above reasons, the petitioner is not entitled to any relief. Then learned Counsel for the respondents submits that even during period of service, petitioner remained absent from duty and that period is required to be deducted from the total length of service of the petitioner and then only actual period of service rendered by the petitioner can be worked out and that will be shorter than 20 years of service.

I considered the submissions of learned Counsel for the parties and perused the record. It is not in dispute that deceased employee was taken in service on 23.4.1984, he was discharged from service initially vide order dated 29.6.2000 and final clearance order was dated 6.7.2000. Both these orders have been quashed by this Court vide judgment dated 28.10.2003 in the writ petition preferred by the petitioner''s husband which is SBCWP No. 2150/2000, therefore, treating deceased employee discharged from 29.6.2000 or from 6.7.2000 is absolutely illegal and runs contrary to the decision given by this Court referred above.

The employee was communicated with the order of discharge vide communication dated 19.5.2004. From communication, learned Counsel for the respondents took date 29.3.2004 from first para of the letter dated 19.5.2004 and treated that as order of discharge from service. Whereas this date 27.3.2004 is date of petitioner''s husband advocate''s letter and not the date of discharged of petitioner from service. The communication dated 19.5.2004 only conveyed "AOC-in-C after reconsidering the reply to your show cause notice has ordered that you are discharged from service" (copy of the order of AOC-in-C remarks enclosed)". The deceased employee has been served with the order of discharge otherwise by communication dated 19.5.2004, is not case of the respondent.

So far as contention of learned Counsel for the respondents that employee remained absent from duty and, therefore, those days for which employee did not discharge the duties, cannot be taken into account while calculating the total period of service of the employee, then admittedly, the employee has not been subjected to any enquiry on this account and consequentially there is no finding that on account of that absence, the employee committed any wrong and consequentially there could not have been punishment.

In the facts of the case, the deceased employee already completed 20 years of service and the respondents committed illegality in treating the petitioner''s discharged from service from 29.6.2000.

Consequently, the writ petition of the petitioner is allowed. The orders dated 31.12.2004 (Annex. p-6) and 29.1.2008 are quashed and set aside, It is held that the deceased Akhtar Khan has completed 20 years of service which is sufficient to qualify for the pension. The respondents are directed to complete the pension case of the deceased Ahktar Khan in accordance with rules and give all the benefits to the petitioner, the wife of the deceased Ahktar Khan within a period of three months from today. The petitioner submitted that even if there is absence from duty that can be condoned, and even up to a period of one year of absence.