The law on social security entitlements in India, like the one on family pension, has been developing in accordance with its ‘spirit’ and not merely its ‘letter’. This is a welcome sign for Indian labour. Technicalities should not be allowed to defeat the very purpose of law. This has been reiterated in the recent judgment of the High Court of Gujarat in Nanuben Bhikhubhai Varnangar vs State of Gujarat and Others (2001-1-CLR-398).

Case Facts

In Nanuben Bhikhubhai Varnangar vs State of Gujarat and Others, Bhikhubhai,  husband of Nanuben — the appellant, was employed as an Armed Police Constable on 26 January 1965. He was made permanent on 14 February 1969. On 25 July 1969, he was suspended from service for his alleged involvement in an offence punishable u/s.302 of the Indian Penal Code. He was acquitted in this criminal case on 28 May 1970.

On 24 July 1970, two cross complaints were filed — one by Constable Bhikhubhai against a Bhabhlu Musa for inflicting knife wounds on him and another against Bhikhubhai by Bhabhlu Musa in connection with the same incident. Constable Bhikhubhai succumbed to injuries on 26 July 1970. His widow, Nanuben, was denied family pension on the ground that period of suspension cannot be counted as part of qualifying service for family pension. Since, excluding that period, the deceased had not completed five years of continuous service, the widow was not entitled to family pension. Another objection put forward by the state government was the delay in filing the application for family pension or the writ petition for the desired relief. The widow moved the High Court in 1995, 25 years after the death of her husband.

The contention of the state government was made on the basis of a government notification of 25 January 1978, which required a specific entry in the service book of an employee that the period of suspension would not count for calculating the pension of the suspended employee.

 In support of its arguments, the government produced an entry in the service book of the deceased, made on the basis of the order of the District Superintendent of Police, Amreli, treating the period from 25 July 1969 (the date of suspension) to 26 July 1970 (the date of death of the constable) as under suspension. However, the said entry did not specify that the period of suspension would not count for pension purposes. The Hon’ble Court took the view that the fact of having an entry in the service book about suspension is not sufficient to attract the government notification of 25 January 1978 since the entry does not mention specifically that such a period of suspension would not count for pension. In fact, through another resolution, dated 8 November 2000, the government took a conscious policy decision and resolved that if an employee under suspension dies before the departmental inquiry or before the criminal proceedings are completed, the period between the date of suspension and date of death shall be considered on duty for all purposes including family pension.

The Judgment

Considering the above facts, the Court held that the period of suspension could not be excluded when counting the qualifying period for family pension. Thus, the deceased had completed more than five years of service and, therefore, the widow was entitled to family pension.

On the question of delay, the Hon’ble Judges, Mr. Justice M.S. Shah and Mrs. Justice, H.N. Devani held that the Apex Court had observed in the S.K. Mastan Bee vs G.M. South Central Railway (2003-1-SCC-184) that when the widow of a deceased employee is an illiterate person, who did not know her rights, had no access to any information regarding her right to family pension and to the enforcement of such a right, it was obligatory for the husband’s employer to have computed the family pension and offered the same to the widow without her having to make a claim or without driving her to litigation.

In Nanuben’s case, therefore, these observations were completely applicable; the question of delay should not obstruct the interest of justice. Thus, the Court decided that the widow of the deceased police constable was eligible for family pension and it awarded the payment of arrears with interest.

In another case dealing with the deprivation of retirement benefits, Jaswant Singh Gill vs Bharat Coking Coal Ltd. & Others, the Apex Court held that the forfeiture of the amount of gratuity was not tenable when the employee was allowed to retire on superannuation, with a departmental enquiry pending against him.

The Facts

Mr. Jaswant Singh was working as Chief General Manager in Bharat Coking Coal Ltd. A charge sheet was issued against him on an allegation of shortage of coal stocks. A departmental enquiry was instituted against him. While the enquiry was pending, he was allowed to retire. His application for the payment of gratuity was denied. The corporation withheld it for making adjustments, in the event that charges against him were proved, and a recovery had to be made.

In the enquiry against Mr. Gill, the charges were proved against him. The disciplinary authority ordered the forfeiture of his gratuity amount. The order of the disciplinary authority was challenged before the Assistant Labour Commissioner, Dhanbad, who held that since Mr. Gill had retired on reaching superannuation, and was not terminated as per disciplinary rules of the company, his entire gratuity could not be forfeited in the light of section 4(6) (a) &4(6)(b) of the Payment of Gratuity Act. The decision was upheld by the Appellate Authority, and a Single Judge of the High Court of Jharkhand, but was reversed in an Intra court appeal, preferred before a Division Bench.

The Hon’ble Supreme Court held that the provisions of the Payment of Gratuity Act would override the rules of the company. Any penalty that can be imposed on an employee under the rules of the company can be imposed as long as he remains in service, and not after his retirement. Since, in the present case, the employee’s services were not terminated but he was allowed to retire, a forfeiture of gratuity is not warranted under the Act or the rules of the company.