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Judgment
R.C. Chavan, J.—This petition by a Senior citizen, who was retired from the respondent''s service long ago, exposed a lack of seriousness, with which the grievances of retired employees are looked into.
It is not in dispute that the petitioner started working as a clerk of Communidade on 15.2.1952 and he last served in Communidade of Kundaim for 7 years. In the year 1977, some disciplinary proceedings were started against the petitioner and he was transferred to Communidade of Nerul, but the petitioner proceeded on sick leave. Eventually he was directed to report for medical fitness test. He was declared unfit for any service by the Medical Board on 13.7.1977 and therefore, stood retired from that date. The disciplinary proceedings against him were not completed and it is not in dispute that the said action was terminated long ago. The petitioner''s pension case was thereafter, processed only in the year 1985 and on 1.5.1985, the petitioner was directed to be paid pension. His pension case was dealt with in accordance with Article 435 of the Estatuto Do Functionalismo Ultramarin, which enables increase in period of service by one-fifth period of service rendered by the pensioner in province other than his native province. The petitioner seems to have been paid pension accordingly.
The petitioner, however, claimed that his case should have been dealt with under Article 324 and 446 of the Estatuto Do Functionalismo Ultramarin, rather than Article 435 and, therefore, made several representations to several authorities including the Ombudsman. The Authorities, however, rejected all his representations. Aggrieved thereby, the petitioner is before this Court praying for a direction commanding the respondents to pay to the petitioner extraordinary pensionary benefits computing his service as 36 years in terms of 324 and 446 of the Estatuto Do Functionalismo Ultramarin from the date of petitioner''s retirement with interest @ Rs. 15 % p.a. till payment.
On behalf of the respondents, this prayer has been opposed by an affidavit-in-reply. According to the respondents, Article 324 is inapplicable to the petitioner''s case, since it would have been attracted only if the petitioner was retired on account of unfitness or illness acquired during the exercise of his duties and for the reason of fulfillment of such duties. According to the respondents, since such is not the case, the petitioner, who had put in 25 years of service, was rightly granted benefit of 31 yeas of service admissible under Article 435. They, therefore, prayed for the dismissal of the petition.
We have heard Shri Sonak, learned Counsel for the petitioner and Ms Susan Linhares, Additional Government Advocate for the respondents. The respondents have not been able to show the Article, under which the petitioner was retired. The question of granting benefit of adding to his service would arise only after manner in which he is retired, is ascertained. It is not in dispute that the petitioner was sent for medical examination and found unfit for service by the competent authority. The certificate itself, which is filed on record at page 23(a), seems to be in Portuguese and translation of relevant portion from it at page No. 23(b) reads as under:
General Astheny arising from the acute sickness or wrongly diagnosed defined sickness resulting from the aging process out of tiredness/ troubleness from service with acute organical or functional stresses/ strains....
Absolutely incapable from all the service for suffering from grave and incurable sickness.
It has not been disputed that the petitioner was then retired from service. Article 238 of the Estatuto Do Functionalismo Ultramarin enables the authority to refer for medical examination the employees, who do not attend duties during successive 30 days on account of sickness. Article 324, which has been invoked by the petitioner reads as under:
Article 324 - In the event of permanent absolute unfitness the employee has the right to retire independently of any other condition.
The said in the article is extensive to the permanent absolute unfitness proceeding from the illness acquired during the exercise of his duties and for the reason of its fulfillment, if the employee has at least ten years of diligent service.
Though there is nothing to show that the petitioner had acquired disability in exercise of his duties or for the reasons in fulfillment of such duties, the respondents have also not been able to show any other provision, under which the petitioner was retired. Therefore, the petitioner''s case that he was retired under Article 324, cannot be disputed.
If he was retired under Article 324, it would follow that he was so retired because of disablement acquired by him in exercise of his duties and for the reasons of his fulfillment. Therefore, merely because there is no record to show that the disablement was acquired during the exercise of duties or for the reasons of its fulfillment, it cannot be held that conditions prescribed by Article 324 were not fulfilled, if the respondents have in fact taken action under Article 324. In that case Article 446, which reads as under would be attracted.
Article 446 - In the cases of extraordinary retirement in terms of Article 324, the pension shall be computed as the agent had thirty-six years of service.
Contention of learned Counsel for the respondents that the petitioner was retired under Article 435, cannot be accepted. Article 435 reads as under:
Article 435 : period of service rendered in a province other than the employee''s native province shall be increased by onefifth for the purpose of retirement.
It may be seen that Article 435 merely provides for increasing of service of employee, who has served outside his native province. Therefore, obviously, the petitioner could not have been retired under Article 435.
In view of this, we hold that the respondents were not justified in rejecting the petitioner''s claim for pension admissible in accordance with Article 446 of the Estatuto Do Functionalismo Ultramarin. We, therefore, direct the respondents to refix the pension of the petitioner accordingly and pay him all the arrears of pension within a period of 3 months with interest @ Rs. 9 % p.a. till the payment is actually made. In the circumstances, parties shall bear their costs. Rule is made absolute in the above terms.