Thursday, October 10, 2013

Bom OA No 42/2012



DATED THIS ______, THE ____ DAY OF ________, 2013.


Mahadev Ganapati Walwekar,
R/at Post Sawarde (Budruk),
Tal: Kagal, Dist.Kolhapur,
Pin 416219.         ...      Applicant

(By Advocate Shri K.R. Yelwe)


1.  Union of India through
    The Chief Post Master General,
    Maharashtra Circle, G.P.O.,
    Mumbai 400001.

2.  The Senior Superintendent
    of Post Offices, Department
    of Posts, Kolhapur Division,
    Kolhapur – 416 003.

3.  The Post Master,
    Western Railway,
    Kolhapur H.O.,
    Department of Posts,
    Kolhapur – 416 003.       ...   Respondents

(By Advocate Shri S.G. Pillai)

Per: Smt. Leena Mehendale, Member (A)
This OA is filed under Section 19 of Administrative Tribunal Act, 1985 on 30.11.2010 claiming that the applicant should be declared eligible for pension and should start getting his pension w.e.f. the due date.  For this purpose, he is challenging the impugned order dated 05.11.2007 and the order dated 21.11.2007 (Annexure A-1).
2. The brief facts are that the Applicant was engaged with the Department of Posts as EDA w.e.f. 01.01.1969 and subsequently started working as EDBPM from 20/05/1985.  It is to be noted that both the jobs have a contractual status and they do not qualify as a normal Government job.  Subsequently, the Applicant was regularized in Group D w.e.f. 01/09/1997 and retired on 30/05/2007 on attaining the age of superannuation.  He is governed by CCS (Pension) Rules of 1972 on account of his service in Group D with the Postal Department.  His effective service in Group D comes to be of 9 years and 9 months.  Under the Rules, anyone is eligible for pension on completion of 10 years.  In addition, there is also a provision of relaxation upto 3 months if someone is falling short of service to that extent.  Thus, apparently, the Applicant is just at the threshold where he would be eligible for minimum pension in view of the relaxation available under Rules.
3. The CCS (Pension) Rules No.49[3] states that qualifying service of more than 9 years and 9 months is to be rounded off to the 10 years for the purpose of grant of pension.  This is further clarified in DTE No.4-1/2005-Pen dated 11.11.2005.
4. Even though the Applicant has completed exactly 9 years and 9 months of service, the impugned order dated 05.11.2007 states that a period of 14 days has been treated as dies-non in the service of the Applicant because he took part in the Postal strike.  The impugned order quotes DOP&T's OM No. 40-10/1(5)90, Estt. Branch dated 01.05.1991 (Annexure A-1) in this regard. The said order also mentions an earlier communication that has taken place between the Applicant and the Respondents.  It appears that there was a request from the Applicant to convert the 14 days strike period, which was termed as dies-non, into leave due but the same was not granted by the Respondents in view of the DOP&T's OM dated 01.05.1991.
5. We heard both the learned counsels in details and have also gone through all the records and documents produced before us.  The learned counsel for the respondents has produced some citations where a service rendered beyond 9 years and few months was the matter under consideration. OA No.61/2010 was dismissed by Ernakulam Bench of this Tribunal where the service rendered was 9 years 5 months and 17 days and also in OA No.769/2010 a direction was given to the respondents to consider the claim when the service rendered was 9 years and 4 months.  Similarly, in OA No.910/2009 the OA was dismissed when the service rendered was 9 years and 5 months.  We find those citations as irrelevant,  in view of the specific Rule 49[2(b)] which allows a service of 9 years and 9 months to be rounded of to 10 years.
6. We find that this is a rare case in which the relevant question is not so much of the exact number of days of service rendered as that aspect is getting clubbed with the fact that the 14 days of strike period participation by the applicant is rendering him disqualified for pension.  It is agreed that the postal strikes affect a very important service provided by the Government to the public.  Thousands of letters and correspondence that gets exchange through the postal service everyday effectively leads to several important consequences including legal rights, business promotions etc.  As such strike in the postal service is to be dealt with strictly and in an exemplary manner so that in future the postal employees may be dissuaded from participating in a strike.
7. We are however, inclined to consider another aspect of this case namely the rare nature of this case.  Out of thousands of the postal employees who may have participated in the strike and for whom the strike period of 14 days may have been treated as dies-non,  there may not be more than 10 cases where the eligibility of pension of an employee is so critically dependent only on those 14 days.  As the fate may have it, it is this rare occurrence which is taking away his right to a dignified retired life after having served the postal department for more than 35 years, although technically the contractual appointment between 1969 to 1997 is not to be treated as a service within the meaning of pension entitlement.
8. It is pertinent to note that during the course of hearing the learned counsel for the applicant had requested permission to file additional documents, especially a circular dated 17.12.1992 issued by the Department of Post, Office of the Chief Postmaster General, Maharashtra Circle. The same have been filed by way of MA Nos.1007/2012 and 234/2013 which are allowed. This circular refers to the question of condonation of unauthorized absence resulting in break in service under FR 17A for the purpose of pension.  This circular states as below:-
“The Directorate has reiterated that the break-in-service may be condoned by the appointing authority for the purpose of pension only as a matter of course and it may be considered by the appointing authority suo-motu without waiting for representation from the affected officials.  It is only in cases involving exceptional and grave circumstances that the appointing authority may decide at its discretion not to condone the break-in-service for the purpose of pension.”

It appears that the postal strike was one such grave situation in which the appointing authority had decided at its discretion not to condone the break-in-service for the purpose of pension.
9. We however, feel that though the postal strike was a rare occasion and hence people on strike may not have been given condonation for purpose of pension as a general principle applicable for all.  However, the present case is a typical rare case out of that rare postal strike where a persons complete pensionary benefit is dependent just on those exact 15 days of strike.  In view of the rare nature of this case, we allow the OA and direct the respondents to treat the service of the applicant from the period 01.09.1997 to 30.05.2007 as pensionable by converting the 14 days period from “dies-non” to “leave as due”.  We make it clear that this is an order in personnem.  The respondents should issue necessary orders to that effect within 3 months. No order as to costs.

(Smt. Chameli Majumdar)    (Smt. Leena Mehendale)
Member(J)             Member(A)


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