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FA/923/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 923 of 2011
With
CIVIL
APPLICATION No. 3322 of 2011
In
FIRST
APPEAL No. 923 of 2011
=========================================================
MUNICIPAL
CORPORATION OF CITY OF AHMEDABAD, & 1 - Appellant(s)
Versus
LEELABEN
WD/O JAYENDRA KANAYALAL SHUKLA & 1 - Defendant(s)
=========================================================
Appearance
:
MR
HS MUNSHAW for
Appellant(s) : 1 - 2.
None for Defendant(s) : 1,
MS PRITI
PANDYA for Defendant(s) : 1.2.1,1.2.2
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 15/07/2011
ORAL
ORDER
By
way of present appeal, the appellants have challenged the legality
and validity of the judgment and order dated 29th
September 2010 passed by the City Civil Judge, Court No.6,
Ahmedabad, in Civil Suit No.919 of 1991, whereby the trial Court has
partly allowed the suit by holding that the respondents are entitled
to have family pension of deceased Jayendrabhai Kanaiyalal Shukla
with effect from 23rd November 2006 with interest at the
rate of 10% per annum from the date of filing of the suit within one
month from the date of the judgment and order.
It
is the case of the appellants that Mr.Jayendra Kanaiyalal Shukla-
original plaintiff was an employee of the appellant-Ahmedabad
Municipal Transport Service. The original plaintiff was appointed
in the year 1961 as a daily wage conductor and later on he was taken
as acting conductor with effect from 01st May 1964.
Earlier the original plaintiff was dismissed from service on 15th
February 1985, however, later on he was reinstated in service
subsequent to the orders of this Court passed in Special Civil
Application No.6701 of 1986. The original plaintiff again involved
himself in a case of issuance of used tickets and misappropriation
of funds. Therefore, he was chargesheeted on 04th
February 1991 and later on he was dismissed on 14th
February 1991. Hence, the original plaintiff the City Civil Court at
Ahmedabad by way of preferring Civil Suit No.919 of 1991. However,
during the pendency of the suit, the original plaintiff passed away
on 23rd November 2006. Therefore, present respondents
were joined as his heirs. Subsequently, the respondents preferred an
application on 19th July 2010 prying for family pension.
On the said application, it was endorsed by the learned advocate for
the appellants that the same shall be paid, if applicable as per
law. In that view of the matter, the trial Court delivered the
impugned judgment and decree. Hence, present appeal.
Having
considered the contentions raised by the learned advocate for the
appellants, averments made in the appeal and the documentary
evidence produced on record, including the impugned judgment and
decree, it transpires that in the order dated 14th
February 1991 dismissing the original plaintiff from service, it has
been categorically stated that if the original plaintiff is the
member of Pension Scheme, he will be entitled to get pension and the
same is not reduced. Further, it has also been categorically stated
that the benefit of family pension will be continued. In that view
of the matter, it appears that the heirs of original plaintiff i.e.
appellants herein, filed an application at Exhibit 67 stating that
the original plaintiff was a member of pension scheme and the amount
of Provident Fund is also deposited with the pension and, therefore,
the respondent-widow who is very old aged, is required to be given
family pension with effect from 23rd November 2011 with
interest. Further, the learned advocate for the appellants before
the trial Court has endorsed on the said application that if the
original plaintiff is a member of the pension scheme and if he is
entitled to pension as per the rules, then he will be given the
same. Thus, considering the aforesaid facts and circumstances of the
case, the trial Court has rightly allowed the suit in part by
directing the appellants herein to give family pension to the
respondents herein with effect from 23rd November 2011
with interest at the rate of 10% from the date of filing of the said
suit. It is required to be noted that the respondent-widow is not
getting the benefit for the last 20 years and only with a view to
deprive her of her legitimate right, present appeal seems to have
been preferred.
For
the foregoing reasons, present appeal fails and is, hereby dismissed
summarily. Consequently, the Civil Application does not survive and
the same stands disposed of accordingly.
Before
parting with the order, it is regretful to mention here that the
Municipal Commissioner, Ahmedabad City, has without verifying the
record and the order of dismissal as well as without application of
mind, accorded sanction to file appeal before this Court and,
therefore, the appellant-Corporation had to incur expenditure
towards the same. Hence, now onwards the Municipal Commissioner,
Ahmedabad City, is hereby directed to verify the record and
thereafter, to direct the concerned department to prefer an appeal
after application of mind.
(K.S.
Jhaveri, J)
Aakar
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