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SCA/2279/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2279 of 2011
=========================================================
JAYANTKUMAR
SOMABHAI SUTARIA - Petitioner(s)
Versus
NEW
INDIA ASSURANCE COMPANY LIMITED - Respondent(s)
=========================================================
Appearance
:
MR
IS SUPEHIA for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1,
MR GM
JOSHI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 20/07/2011
ORAL
ORDER
Heard
learned advocate Mr. IS Suphia on behalf of petitioner, learned
advocate Mr. GM Joshi appearing for respondent new India Assurance
Co. Ltd.
In
present petition, prayer is made by petitioner to direct respondent
to pass an order of retirement of petitioner and till then to pay
full salary and allowances as if petitioner is on duty and arrears
to be paid with 10%. In alternative, further prayer is made in para
15(B) to direct respondent to pay retirement benefits including
pension, gratuity, commuted pension leave encashment w.e.f. 1/5/2010
and arrears to be paid with 10% interest.
Learned
advocate Mr. Supehia submitted that petition was filed by New India
Assurance Co. Ltd being SCA no. 7448/2010. This Court has passed an
order on 30/8/2010 wherein this Court has directed to petitioner in
para 8 and 9, which are quoted as under:
8. Learned
advocate Mr.Supehia for respondent No.5 submitted that respondent
No.5 has retired from service on 30.4.2010 and therefore, more than 4
months have passed but, till date because of this dispute
(controversy) the respondent No.5 has not received any retirement
benefits from petitioner – Insurance Co. Therefore, he
submitted that some suitable direction may be issued to petitioner –
Insurance Co. so that petitioner – Insurance Co. may pay all
the retirement benefits which are legally available to respondent
No.5, as early as possible.
9. In
view of above submissions made by learned advocate Mr.Supehia, it is
directed to petitioner – Insurance Co. to pay all retirement
benefits which are legally due and available to respondent No.5 under
service rules, as early as possible, preferably within a period of
two months from date of receiving copy of present order without any
further delay.”
Learned
advocate Mr. Joshi appearing for respondent submitted that order
passed by this Court has been challenged by respondent in LPA no.
667/2011 where division Bench of this Court has passed an order on
27/4/2011 and dismissed LPA preferred by respondent, which is quoted
as under:
“1. We
have heard Mr. Gautam Joshi, learned counsel appearing for the
appellant, Mr. N.J.Shah, learned Assistant Government Pleader
appearing for respondent nos.1 to 4 and Mr. A.S.Supehia, learned
counsel appearing for the respondent no.5.
2. The
appellant filed the writ petition before the learned Single Judge
praying the following reliefs:
“(A)
Your Lordship may be pleased to issue writ of mandamus or writ of
certiorari or any other appropriate writ, order or direction in the
nature of mandamus directing the respondent no. 2 and 3 to verify the
Caste Certificate of respondent no. 5 declaring the caste certificate
of respondent no. 5 as genuine or not and further issue status of
caste certificate;
(B)
Your Lordship may be pleased to grant any other and further relief as
think fit and proper in the facts and circumstances of the case and
in the interest of justice;
(C)
Costs may be provided for.”
3. From
the aforesaid, it is clear that the only relief claimed by the
appellant was with regard to application of caste certificate of
respondent no.5 and declare the caste certificate of respondent no. 5
as genuine or not and further issue status of caste certificate.
They have stated that if the caste certificate was issued as
respondent no.5 belonged to scheduled caste category and it was a
genuine certificate and the caste certificate would stand.
4. The
contention of the learned counsel for the appellant is that after
issuance of caste certificate, the respondent no.5 has changed his
caste and has now become Christian and therefore, the caste
certificate deserves to be cancelled. But this was not the relief
prayed by the appellant before the authority concerned nor before the
learned Single Judge. Therefore, we do not find any illegality in the
impugned order passed by the concerned authority dated 30th August,
2010 and the order of the learned Single Judge. This Letters Patent
Appeal is devoid of any merits and accordingly it deserves to be
dismissed.”
In
light of this back ground, learned advocate Mr. Supehia submitted
that petitioner has been retired from service on 30/4/2010, more
than one year has passed till date petitioner has not received any
retirement benefits from respondent.
At
this stage, learned advocate Mr. GM Joshi made mention to this Court
that he is having instruction that matter has been carried by
respondent to Apex Court. However, apart from this facts, it is
directed to respondent to pay all retirement benefits for which
petitioner is entitled according to service Rules and Regulation of
respondent within a period of three months from date of receiving
copy of present order. However, it is made clear if some of
retirement benefit is to be paid by respondent to petitioner then
remaining retirement benefit is to be paid by respondent within a
period of three months from date of receiving copy of present order.
In
view of above observation and direction, present petition is
disposed of by this Court without expressing any opinion on merits.
Direct service is permitted.
(H.K.RATHOD,
J)
asma
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