Union of India (Uoi) and ors. Vs. Rekha Lal - Court Judgment

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central civil services (pension rules), 1972 - rule 49 -- central administrative tribunal granting pro-rata family pension to the widow of the deceased employee -- termination of services of deceased due to unauthorized absence -- no forfeiture of pension -- order of tribunal affirmed. - - hence, departmental proceedings were initiated against him which resulted in the passing of an order of compulsory retirement against him on 12th march, 1990. he challenged the same, but without success. rekha lal expecting pensionary benefits, approached the union of india, but met with no success.rekha sharma, j.1. shri h.k. lal was serving as acio-i/g in the ministry of home affairs, government of india. it so happened that on 22nd february, 1988, he proceeded on casual leave. the leave was sanctioned for a period of 8 days i.e. till 7th march, 1988 and he was suppose to join duty on 8th march, 1988. however, for reasons which are not spelt out, he did not report back. hence, departmental proceedings were initiated against him which resulted in the passing of an order of compulsory retirement against him on 12th march, 1990. he challenged the same, but without success. luck alluded him further. he died on 23rd february, 1998. the unfortunate widow smt. rekha lal expecting pensionary benefits, approached the union of india, but met with no success. she then approached the central administrative tribunal (hereinafter called the `tribunal'). the tribunal after going through the respective contentions of the parties, granted relief to the widow. it held that shri h. k. lal was entitled to pro rata pension with effect from 12th march, 1990 till 22nd november, 1998 and consequent upon his death, his wife was entitled to family pension. interest @ 10% per annum was also awarded. the tribunal in support of its findings, invoked rule 49 of central civil services (pension rules), 1972 (hereinafter referred to as `ccs pension rules'). the said rule runs as under:-amount of pension(1). in the case of a government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate o half month's emoluments for every competed six monthly period of qualifying service.(2) (a) in the case of a government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years, the amount of pension shall e calculated at fifty per cent of average emolument, subject to a maximum of four thousand and five hundred rupees per mensum.(b) in the case of a government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under clause (a) and in no case the amount of pension shall be less than [rupees three hundred and seventy-five] per mensum;**notwithstanding anything contained in clause (a) and clause (b) the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of rule 54.(3). in calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half-year and reckoned as qualifying service.(4). the amount of pension finally determined under clause (a) or clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee.2. the case of union of india simply put, `is that shri h.k. lal was a habitual absentee' and due to his above-stated last absence, the same was treated as break in service and it was also so recorded in his service-book. this, it was stated, dis-entitled him and in consequence, his widow, from claiming the relief and in support, reliance was placed upon rule 17a of the fundamental rules and rule 28 of the ccs pension rules. for purposes of clarity, the said rules also need to be re-produced as under :rule 17a of the fundamental rules:-'without prejudice to the provisions of rule 27 of the central civil services (pension) rules, 1972, a period of an unauthorized absence-(i) in the case of employees working in industrial establishments, during a strike which has been declared illegal under the provisions of the industrial disputes act, 1947, or any other law for the time being in force;(ii) in the case of other employees as a result of action in combination or in concerted manner, such as during a strike, without any authority from, or valid reason to the satisfaction of the competent authority ; and(iii) in the case of an individual employee, remaining absent unauthorizedly or deserting the post,shall be deemed to cause an interruption or break in the service of the employee, unless otherwise decided by the competent authority for the purpose of leave travel concession, quasi-permanency and eligibility for appearing in departmental examinations, for which a minimum period of continuous service is required.'rule 28 of ccs pension rules:-28. condensation of interruption in service(a) in the absence of a specific indication to the contrary in the service book, an interruption between two spells of civil service rendered by a government servant under government including civil service rendered and paid out of defense services estimates or railway estimates shall be treated as automatically condoned and the pre- interruption service treated as qualifying service.(b) nothing in clause (a) shall apply to interruption caused by resignation, dismissal or removal from service or for participation in a strike.the period of interruption referred to in clause (a) shall not count as qualifying service.'3. it was alleged that the break in service of shri h.k. lal was not condoned, and as such, on account of his absence from duty, he invited the consequence of forfeiture of his entire past service.4. is the union of india justified in its stand ?5. as we have already stated above, the contention of union of india did not find favor with the central administrative tribunal. the tribunal while reaching its conclusions relied upon rule 49 of ccs pension rules and held that shri h. k. lal was entitled to pro rata family pension and his widow to family pension.6. before we proceed further, we may say with respect, that the tribunal did not deal with the question whether the past service of shri h.k. lal was liable to be forfeited. this, we feel, was the core issue. in this context, it is rule 27 of the ccs pension rules which is relevant and is of significance. the said rule reads as under :-27 effect of interruption in service.(1). an interruption in the service of a government servant entails forfeiture of his past service, except in the following case:-(a) authorized leave of absence;(b). unauthorized absence in continuation of authorized leave of absence so long as the post of absentee is not filled substantively;(c). suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the government servant dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension;(d). transfer to non-qualifying service in an establishment under the control of the government if such transfer has been ordered by a competent authority in the public interest ;(e) joining time while on transfer from one post to another.(2). notwithstanding anything contained in sub-rule (1), the appointing authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave.7. as would be borne out from a bare reading of this rule, particularly, its clause (1) (b), an interruption in the service of a government servant will not entail forfeiture of his past service where his un-authorized absence was in continuation of authorized leave of absence so long as the post of absentee is not filled substantively. in the case before us and as already noticed above, shri h.k. lal had proceeded on casual leave from 22nd february, 1988 to 7th march, 1988 which was duly sanctioned and it was only thereafter, that he did not join duty. his case thereforee, squarely fall within the ambit of rule 27(1)(1b), more so, as it is also not the case of union of india that the said post had been filled substantively within the meaning of the said rule.8. for what has been recorded by us, we hold, that shri h.k. lal was entitled to pensionary benefits under rule 49 of the ccs pension rules and on his death, his widow became entitled to family pension. we thus, concur with the conclusions arrived at by the tribunal, though not entirely for the same reasons as advanced therein. the writ petition is dismissed leaving the parties to bear their own costs.