Mohammad Khalil Vs. Kamaruddin - Court Judgment

Excerpt:
- labour & services pension: [altamas kabir & cyriac joseph,jj] pension entitlement - punjab civil services rules, 1989, rules. 4.19, 6.16(2), 5.32a - civil servant completing 18 years of service - resigning to join bank service - plea that he is not disqualified to get pension as resignation was not for anti-national activities held, the civil servant resigning from service after putting in 18 years of service for joining bank service cannot after retiring from bank service claim pension on ground that his resignation not being on account of anti-national activities he was not disqualified from getting pension under rule 4.19(a) and would therefore, be entitled to pension under rule 6.16(2) having put in more than 10 years of government service. rule 4.19(a) has to be read and understood differently from what has been claimed. the expression resignation from public service will have to be read disjunctively from dismissal or removal from it. the expression resignation from public service will not be qualified by the subsequent references relating to anti-national activities. on the other hand, the expression dismissal or removal from it will be qualified by the said expression which would in both cases entail forfeiture of past service and disqualification so far as payment of pension is concerned. in other words, read disjunctively, resignation simpliciter from public service would entail forfeiture of past service and no pension is to be granted in the aforesaid circumstances. as far as rule 4.19(b) concerned it is quite clear that resignation to take up, with proper permission, another appointment, would have be in a service, which would count towards pension in government service. it means that the subsequent appointment must also be in public service and in such a case the resignation would not amount to resignation of public service. in such a case, continuity in public service would be accepted in computing the qualifying service of 30 years for grant of pension. as far as rule 6.16(2) is concerned, the same cannot be divided into two separate compartments. the second part of the said rule is a consequence of the first part, which deals with retirement upon superannuation and not resignation, as in the instant case. in order to be eligible for pension the government employee at the time of superannuation would have to complete qualifying service of not less than 33 years or more. however, an exception has been made in the second part of the said rule which also allows the benefit of pro-rata pension to employees who had rendered 10 years service or more. having superannuated from bank service, the petitioner bank employee cannot come within the said category of rule 6.16(2). - the learned counsel placed strong reliance on order 41, rule 17, sub-rule (1) read with explanation, cpc and contended that the appeal could not be heard on merits.order1. leave granted.2. we have heard learned counsel on both sides.3. this appeal by special leave arises against the judgment and decree of the high court of allahabad made on january 23, 1995 in second appeal no. 1437/80. the admitted position is that the appellant was one of the defendants in the suit. the suit for specific performance had come to be filed for execution of the sale deed under an agreement. the trial court disbelieved the agreement on the ground of interpolation and dismissed the suit. on appeal, the appellate court reversed the decree. thus, the appellant and others came to file second appeal in the high court. there were four appellants before the high court. the appellant herein had changed the advocate and the other three had not changed the advocate. when the case was called on for hearing, the counsel who had not changed and filed the appeal initially argued the matter on behalf of the other appellants also. the high court was not inclined to interfere. the appellant alone had changed the advocate but he did engage other advocate who did not appear nor argued on behalf of the appellant on the date when the case was posted. accordingly, the high court came to dispose of the second appeal on merits confirming the decree of the appellate court.4. the question raised in this appeal is: whether the high court was competent to dispose of the appeal on merits when one of the appellants was absent? the learned counsel placed strong reliance on order 41, rule 17, sub-rule (1) read with explanation, cpc and contended that the appeal could not be heard on merits. we find no force in the contention. when the appeal was posted for hearing, it is but the duty of the counsel to appear. when it is contended that the name of the advocate for the appellant was not recorded and he could not notice the case, we asked the counsel whether the counsel has filed any affidavit to that effect. he frankly admits that the affidavit has not been filed but the appellant has asserted that the counsel could not notice the appeal having come up for hearing. it is seen that three of the appellants who had commonly filed the appeal were heard by the learned judge through the counsel and the high court was not inclined to interfere with the appeal. when the appellant had changed the counsel, it is but his duty to see that the counsel is ready. when the counsel was not present, the court is not incumbent to adjourn the case. even otherwise we are not inclined to accept the contention that the appellate court could not dispose of the appeal on merits. the appeal was rightly dismissed on merits by the high court confirming the decree of the appellate court and it does not warrant interference.5. the appeal is accordingly dismissed. no costs.

Judgment:
ORDER

1. Leave granted.

2. We have heard learned Counsel on both sides.

3. This appeal by special leave arises against the judgment and decree of the High Court of Allahabad made on January 23, 1995 in Second Appeal No. 1437/80. The admitted position is that the appellant was one of the defendants in the suit. The suit for specific performance had come to be filed for execution of the sale deed under an agreement. The trial Court disbelieved the agreement on the ground of interpolation and dismissed the suit. On appeal, the appellate Court reversed the decree. Thus, the appellant and others came to file second appeal in the High Court. There were four appellants before the High Court. The appellant herein had changed the advocate and the other three had not changed the advocate. When the case was called on for hearing, the counsel who had not changed and filed the appeal initially argued the matter on behalf of the other appellants also. The High Court was not inclined to interfere. The appellant alone had changed the advocate but he did engage other advocate who did not appear nor argued on behalf of the appellant on the date when the case was posted. Accordingly, the High Court came to dispose of the second appeal on merits confirming the decree of the appellate Court.

4. The question raised in this appeal is: whether the High Court was competent to dispose of the appeal on merits when one of the appellants was absent? The learned Counsel placed strong reliance on Order 41, Rule 17, Sub-rule (1) read with Explanation, CPC and contended that the appeal could not be heard on merits. We find no force in the contention. When the appeal was posted for hearing, it is but the duty of the counsel to appear. When it is contended that the name of the advocate for the appellant was not recorded and he could not notice the case, we asked the counsel whether the counsel has filed any affidavit to that effect. He frankly admits that the affidavit has not been filed but the appellant has asserted that the counsel could not notice the appeal having come up for hearing. It is seen that three of the appellants who had commonly filed the appeal were heard by the learned Judge through the counsel and the High Court was not inclined to interfere with the appeal. When the appellant had changed the counsel, it is but his duty to see that the counsel is ready. When the counsel was not present, the Court is not incumbent to adjourn the case. Even otherwise we are not inclined to accept the contention that the appellate Court could not dispose of the appeal on merits. The appeal was rightly dismissed on merits by the High Court confirming the decree of the appellate Court and it does not warrant interference.

5. The appeal is accordingly dismissed. No costs.