Gujarat High Court
Ahmedabad Municipal Transport - ... vs Rahimbhai Muradbhai on 8 October, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/871/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 871 of 2017
In
SPECIAL CIVIL APPLICATION NO. 1706 of 2014
With
R/LETTERS PATENT APPEAL NO. 872 of 2017
In
SPECIAL CIVIL APPLICATION NO. 1710 of 2014
With
R/LETTERS PATENT APPEAL NO. 873 of 2017
In
SPECIAL CIVIL APPLICATION NO. 1711 of 2014
With
R/LETTERS PATENT APPEAL NO. 874 of 2017
In
SPECIAL CIVIL APPLICATION NO. 1712 of 2014
With
R/LETTERS PATENT APPEAL NO. 875 of 2017
In
SPECIAL CIVIL APPLICATION NO. 1713 of 2014
With
R/LETTERS PATENT APPEAL NO. 876 of 2017
In
SPECIAL CIVIL APPLICATION NO. 5346 of 2014
With
R/LETTERS PATENT APPEAL NO. 877 of 2017
In
SPECIAL CIVIL APPLICATION NO. 5506 of 2014
With
R/LETTERS PATENT APPEAL NO. 878 of 2017
In
SPECIAL CIVIL APPLICATION NO. 8090 of 2014
With
R/LETTERS PATENT APPEAL NO. 879 of 2017
In
SPECIAL CIVIL APPLICATION NO. 8286 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
Page 1 of 26
C/LPA/871/2017 CAV JUDGMENT
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
AHMEDABAD MUNICIPAL TRANSPORT - SERVICE
Versus
RAHIMBHAI MURADBHAI
==========================================================
Appearance:
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR HS
MUNSHAW(495) for the PETITIONER(s) No. 1
MR YOGEN N PANDYA(5766) for the RESPONDENT(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 08/10/2018
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. All these Letters Patent Appeals arise out of a common judgement and order dated 28.04.2017. The appellant herein is the original petitioner who had challenged the award dated 07.10.2013 passed by the learned Industrial Tribunal at Ahmedabad in Reference (IT) No. 140 of 2011. The learned Tribunal by the award directed that the claimants who had Page 2 of 26 C/LPA/871/2017 CAV JUDGMENT accepted voluntary retirement under the Voluntary Retirement Scheme are entitled to and eligible for pension. A direction was, therefore, issued that the present appellant - original petitioner - Ahmedabad Municipal Transport Corporation should compute and pay pension to the claimants keeping in mind their entire service including their tenure of service as daily wagers.
2. The facts in brief are as under:
2.1 From the Statement of Claim annexed to the paper book of Letters Patent Appeal No. 871 of 2017, it was the case of the claimant therein that he was working as a driver with the appellant Corporation. He had joined the transport service on 12.01.1981 as a daily wager. On completion of five years of service, with effect from 01.01.1986, the claimant was taken on what the Corporation termed as 'acting service'. The claimant continued to render service upto 31.07.2004. It was his case before the Labour Court that after having rendered more than 22 years of service, though the claimant had accepted voluntary retirement, since he was a member of the pension scheme ,he was entitled to pensionary benefits.
2.2 The dispute was so referred to the Industrial Tribunal.
The reference was that whether the claimant was entitled to pension for the service rendered from 1981 to 2004. The appellant Corporation filed its written statement at Ex. 12 denying the claim of the workman - respondent herein. The contention of the appellant Corporation essentially was two fold namely (a) that once having accepted voluntary retirement and compensation thereunder, it was not open for Page 3 of 26 C/LPA/871/2017 CAV JUDGMENT the claimant to claim pension and (b) the Corporation placed reliance on Rule 25 of The Gujarat Civil Services (Pension) Rules, 2002 (hereinafter referred to as 'the 2002 Rules') contending that since the claimant was a daily wager from 1981 to 1986 the service rendered was not on 'a regular establishment'. Further the claimant had completed less than 20 years of service having rendered service only from 1986 to 2004, which was a period less than 20 years excluding his tenure as a daily wager. Therefore, the service so rendered was not pensionable. Documentary evidence was led before the Labour Court. The pension scheme vide circular no. 102 dated 31.03.1987 and the circular regarding voluntary retirement dated 16.12.2003 and other documents were placed on record. The Industrial Tribunal, after considering the scheme of voluntary retirement and the pension scheme and considering Rule 25 of the 2002 Rules, came to the conclusion that service rendered as a daily wager from 12.01.1981 to 01.01.1986 ought to be counted as service rendered for the purposes of pension. The contention/objection of the Corporation that such service was not on a regular establishment was negated. The Industrial Tribunal considered the decision of the Punjab and Haryana High Court, quoted extensively in the award under challenge and gave the directions, which were challenged by the appellant before the learned Single Judge.
2.3 The learned Single Judge on an elaborate and extensive appreciation of facts and taking into consideration the various circulars which were on record as also Rule 25 of the 2002 Rules held that the Industrial Tribunal committed no error in holding that the claimants before the Tribunal were entitled to Page 4 of 26 C/LPA/871/2017 CAV JUDGMENT and eligible for pension. The learned Single Judge has extensively and elaborately considered the various submissions and arguments of the learned advocates appearing on behalf of the respective parties to hold accordingly. The reasons which the learned Single Judge has assigned, would be dealt with and reproduced in the latter part of this judgement.
3. Mr. Kamal Trivedi, learned Senior Advocate assisted by Mr. H.S. Munshaw has appeared for the appellant Corporation and Mr. Yogen Pandya, learned advocate has appeared for the respondents.
4. Mr. Kamal Trivedi, learned Senior Advocate has essentially raised three fold contentions to assail the award of the Industrial Tribunal as confirmed by the learned Single Judge. From the extensive submissions made by him what in essential substance that the learned Senior Advocate has contended is that :
(I) The claimants before the Industrial Tribunal working in various capacities had joined the establishment as daily wagers. Taking us extensively through the provisions of the 2002 Rules, especially Rule 25 thereof, Mr. Trivedi submitted that categories of service as enumerated in sub-clauses (a) to (h) specifically stand excluded for deriving the benefit of pension. According to Mr. Trivedi, Rule 25(c) categorically provides that service rendered on 'a daily wage establishment' stands specifically excluded and therefore cannot be counted for the purposes to compute service, qualifying for the Page 5 of 26 C/LPA/871/2017 CAV JUDGMENT purposes of pension. Admittedly, in the present case, the claimants had initially been appointed on such daily wage establishment and therefore once that period of service is excluded, the claimants did not complete the requisite qualifying period of service i.e. 20 years.
Therefore, the learned Single Judge ought not to have considered such period as once qualifying for the purposes of pension.
(II) Mr. Trivedi, learned Senior Advocate further contended that when the rule i.e. Rule 25 itself was not under challenge, which specifically denied benefit of service rendered as a daily wager, or on a daily wage establishment, the Industrial Tribunal as well as the learned Single Judge could not have included such service rendered in daily rated establishment and extended the benefit of such service to the claimants. (III) It was further contended that having once accepted voluntary retirement under the Scheme, it was not open for the claimants to resile therefrom and ask for the benefits of pension. Great emphasis has been placed on the fact that when the claimants accepted voluntary retirement, they had done so by executing a letter of consent. The scheme of voluntary retirement, particularly, the circular and the scheme itself provided that the employee who is entitled to pension will not be given the benefit of compensation. Having known that the claimants were not entitled to pension and having responsibly accepted compensation under the scheme it was not open for the respondent claimants to approach the Tribunal and ask for voluntary retirement benefits.
Page 6 of 26 C/LPA/871/2017 CAV JUDGMENT4.1 Mr. Trivedi, learned Senior Advocate in support of his submissions has relied on the following decisions:
(a) A.K. Bindal and Another vs. Union of India and Others reported in (2003) 5 SCC 163;
(b) Unreported decision of this Court rendered in the case of President, Ramchandra Himmatlal Kapadia Govt Presses Adhoc Retired Employees Union vs. Secretary and others in Letters Patent Appeal No. 373 of 2016;
(c) Ashok Tiwari vs. M.P. Text Book Corporation and Another reported in 2010(2) MPLJ 662;
(d) State of Haryana and Others vs. Jasmer Singh and Others reported in (1996) 11 SCC 77;
(e) State of U.P and Others vs. Ajay Kumar reported in (1997) 4 SCC 88;
(f) Karnataka State Road Transport Corporation and Another vs. S.G. Kotturappa and Another reported in (2005) 3 SCC 409;
(g) State of Haryana vs. Haryana Veterinary & AHTS Association and Another reported in (2000) 8 SCC 4;
(h) State of U.P and Others vs. Ram Pratap Shukla reported in 2008(119) FLR 492.
5. Mr. Yogen Pandya, learned advocate appearing for the respondents - claimants has taken us through the award of Page 7 of 26 C/LPA/871/2017 CAV JUDGMENT the Industrial Tribunal and the judgement of the learned Single Judge. Relevant provisions of the Voluntary Retirement Scheme, the Pension Scheme and the service regulations of the Corporation have been brought to our notice to suggest that the Industrial Tribunal was not incorrect in coming to the conclusions that it did. Mr. Pandya, learned advocate also pointed out that the learned Single Judge committed no error in confirming the findings of the Industrial Tribunal. He submitted that the learned Tribunal has not committed any error in construing and applying Rule 25 of the 2002 Rules. It is an admitted fact that the claimants were appointed in a substantive capacity on the post and therefore the Tribunal and the learned Single Judge had committed no error in taking their entire tenure of service into consideration. It was further submitted that their initial appointment was in accordance with the selection procedure and could not be termed as backdoor entry or an irregular appointment and therefore the learned Single Judge was right in his perception and direction to award pension to the respondents - original claimants.
5.1 Mr. Pandya, learned advocate has relied on the following judgements in support of his submissions:
(a) Balco Captive Power Plant Mazdoor Sangh and Another vs. National Thermal Power Corporation and Others reported in (2007) 14 SCC 234;
(b) Kerala State Road Transport Corporation vs. K.O. Varghese and Others reported in Page 8 of 26 C/LPA/871/2017 CAV JUDGMENT (2003) 12 SCC 293.
6. The learned Single Judge has elaborately considered the aspect of granting pensionary benefits to the claimants who had otherwise tendered voluntary retirement. The controversy, in short, without necessary elaboration which the learned Single Judge has rightly considered, is two fold:
(a) Whether the Corporation was right in denying the respondents - claimants the benefits of pension by excluding their tenure of service as daily wagers. But for such exclusion from their entire tenure of service, the claimants would have completed "qualifying service for the purposes of pension". Clause (c) of Rule 25 of the 2002 Rules was considered by the Tribunal and the learned Single Judge in construing the provisions in their favour.
(b) Whether having once accepted Voluntary Retirement under the scheme, knowing fully well that they would not be entitled to pension, was it open for the claimants to resile from such stand in light of their consent letter and then turn around and ask for pension.
6.1 The learned Single Judge has extensively reproduced the relevant provisions of the pension scheme of the Corporation, the service regulation of the Corporation especially Regulations 2.10 and 2.11 which classify the employees of the appellant Corporation into three categories namely permanent, temporary and acting. The said regulations have been framed under Section 457 read with Section 465 of the Page 9 of 26 C/LPA/871/2017 CAV JUDGMENT Gujarat Provincial Municipal Corporation Act, 1949. The concept of the members of the staff having classified as permanent, temporary and acting as reproduced by the learned Single Judge reads as under:
(c) Regulation Nos.2.10 and 2.11 classify the employees of the petitioner AMTS into 5 categories namely viz permanent, probation, temporary, badli and acting. The said expressions are dependent on Regulation No.2.10 and 2.11 which reads thus :-
"2.10 MEMBERS OF STAFF CLASSIFIED AS (1) "Permanent" means a member of staff who has been engaged on a permanent basis and includes any person who has been taken on the permanent establishment after satisfactorily completing a Probationary period as applicable to him. (2) "......."
(3) "Temporary" means a member of staff whose services have been engaged for a limited period in connection with work, which is essentially of a temporary nature or who is employed temporarily as an additional staff in connection with temporary increase in work of a permanent nature and includes a Substitute who is appointed in the post of a permanent member of staff or a Probationer who is temporarily absent.
(4) "........."
2.11 ACTING means the performance of duties on a temporary basis, by a member of staff, in a post to which another members holds a lien or which is vacant and includes an acting appointment in place of a member of staff on deputation or training or instruction or for Undertaking Business."
6.2 Para 5.3 of the judgement of the learned Single Judge considers the pension scheme of the appellant Corporation. Undisputedly, the claimants were members of the pension scheme which was formulated by the Corporation by Circular No. 102 dated 31.03.1987 with effect from 01.01.1983. It is Page 10 of 26 C/LPA/871/2017 CAV JUDGMENT not the case of the Corporation that the claimants were not members of the pension scheme and GPF. Qualifying service for the purposes of pension in accordance with the pension scheme was 10 years which even if the service rendered in the daily wage establishment was excluded, was completed by the claimants. However, the issue was whether the claimants could have been said to have rendered service in "daily rated establishment" or a "regular establishment in substantive capacity" as contended by the claimants.
6.3 Rule 25 of the 2002 Rules reads as under:
"25. Qualifying service:
Subject to the provisions of these rules, qualifying of a Government employee, means and includes that-
(i) all service including service on probation rendered on a regular establishment in any capacity whether, temporary or permanent, interrupted or continuous but it shall not include-
(a) service in non-pensionable establishment,
(b) service paid from continences,
(c) service rendered in daily rated establishment,
(d) actual periods of break in service if any, between spell of service.
(e) service prior to resignation, removal or dismissal,
(f) service as an apprentice,
(g) service on fixed pay basis, and
(h) service on contract basis"
(ii) all service rendered in work charged establishment provided that the total service put in, as such is five years or more.
(iii) to (x) xxx xxx."
6.4 Reading of the rule would suggest that qualifying service Page 11 of 26 C/LPA/871/2017 CAV JUDGMENT of a government employee would include all service including service on probation rendered on a regular establishment in any capacity whether, temporary or permanent. What is excluded therefrom is set out in clauses (a) to (h). The Corporation has pressed into service clause (c) i.e. service rendered in daily rated establishment. Such service admittedly according to the claimants was for a period of five years. If such period is taken out, in accordance with the pension rules which admittedly were applicable to the employees of the Corporation, they would fall short of the 20 years' ceiling.
7. Can the claimant, therefore, be said to have been employed or have rendered service in a daily rated establishment is the question that begs the answer. In order to answer this question, the nature and the status of the appointments and the service of the claimants need to be considered. This has been extensively considered by the learned Single Judge in para 5.7 of the judgement. Without extensively reproducing the same, the essential features that can be culled out from the nature and status of such appointments are as under:
(i) Their appointment was in accordance with the procedure prescribed under the service regulations. It cannot be said to be irregular. The claimants had applied in response to an advertisement inviting applications.
Only after having assured that the claimants had fulfilled the eligibility criteria for the post such as the age limit, qualification etc that the claimants were selected.
(ii) Though they were branded as "daily wagers", they Page 12 of 26 C/LPA/871/2017 CAV JUDGMENT were made members of the Provident Fund (GPF).
(iii) They were bound by the service and discipline rules of the appellant Corporation. Except for the label "daily wager" all the benefits and characteristics akin to their appointments being on the regular establishment in a substantive capacity were present.
(iv) We have reproduced in our judgement clause 2.11 of the service regulations defining "acting service". Since the claimants completed five years of service as "daily wagers", their services were converted into the category of acting service and taking into account such period till their voluntary retirement they had completed 15 to 16 years of service which brought them within the purview "qualifying service and in accordance with the pension scheme of the Corporation. Recapitulation of facts as referred to by the learned Single Judge vis-a-vis their appointments need reiteration at the cost of repetition which is as under:
"7. In this backdrop, it is appropriate to recapitulate relevant facts. It has emerged from the record and the submissions that:-
(a) appointments of all claimants were made in regular manner after following prescribed procedure and in accordance with applicable Rules and prescribed procedure for selection and recruitment;
(b) the claimants possessed and fulfilled the eligibility criteria for selection and appointment , viz. qualifying criteria related to age limit requisite educational qualification, experience, etc. for the posts for which they were selected and appointed;
(c) from first day of their appointment, the claimants were undisputedly, members of G.P.F. and they were also members of the pension Scheme of the petitioner AMTS and Page 13 of 26 C/LPA/871/2017 CAV JUDGMENT for entire tenure of their service they had worked regularly, continuously and without any break and they worked fulltime on the post of Driver/conductor/ workshop bodysmith;
(d) despite such facts, during initial period of their service, salary was paid to the claimants on daily basis;
(e) however, subsequently i.e. within about 5 or 6 years of initial service, their service were converted to the category of "acting service";
(f) even according to submission, statement and admission by the petitioner AMTS, the period of service rendered in the category of "acting service" is considered "pensionable service" or "qualifying years for pension" or "eligible service" and is taken into account for determining eligibility / entitlement for pension;
(g) therefore, the services rendered by the claimants at least from the date when their service were converted to the status of "acting service" is eligible for pension;
(h) at the time when the claimants opted for voluntary retirement under the VRS, they were not working on daily wage establishment but they were treated and considered in category of "acting service". This fact is not disputed even by the petitioner AMTS.
(i) according to the VRS of the petitioner AMTS, any employee retiring after 1.1.2005 and who was member of pension scheme and whose service was pensionable was considered eligible to apply for the VRS.
Undisputedly, all claimants fulfilled said criteria.
(j) The said provision brought in picture and injected the pension scheme into the VRS.
(k) According to the pension scheme, the employee who had completed pensionable service for ten years, was considered eligible for pension.
(l) undisputedly, total tenure of their service, at the time when the claimants opted for voluntary retirement, was 20 years, out of which service of 15 to 16 years was rendered Page 14 of 26 C/LPA/871/2017 CAV JUDGMENT in the category of "Acting Service".
7.1 Now, in light of above mentioned facts, it is appropriate and necessary to take into account relevant provision under the pension scheme of the petitioner AMTS and the provision under the VRS. The VRS of the petitioner AMTS provide,inter alia, that :-
(i) Voluntary Retirement Scheme:
"(1) All the employees retiring after 1/1/2005 are entitled to join this Scheme. (This Scheme shall not be applicable to the employee retiring between 31/12/2003 to 31/12/2004.) (2) The employee who is a member of Pension Scheme and whose service is pensionable will be paid amount of pension as per Pension Rules."
The said clause/para No.2 of the VRS brings in picture the pension Scheme of the petitioner AMTS and that therefore, the entitlement of claimants for pension must be determined in light of the terms and conditions of the pension Scheme of the petitioner AMTS.
(ii) The pension scheme provides, inter alia, that:-
Pension Scheme:
"[3] At the time of retirement, the employee who has rendered the pensionable service for ten years and above will receive monthly pension during his lifetime."
7.2 On cumulative and conjoint reading of the VRS of the petitioner AMTS and the pension scheme of the petitioner AMTS and the facts related to their appointments and the tenure of their service, below mentioned picture has emerged that:-
(A) [I] except the criteria prescribed by clause No.1 and 2 of VRS any other condition or criteria or requirement is not prescribed for joining and availing the VRS;
[ii] according to the provisions under the said schemes of the petitioner AMTS, the provision Page 15 of 26 C/LPA/871/2017 CAV JUDGMENT under the pension scheme of the petitioner AMTS have to be taken into account for determining as to whether the concerned employee had rendered sufficient "pensionable service" (so as to be eligible for pension in accordance with the pension scheme) or not;
[iii]as declared and admitted by the petitioner AMTS, the service rendered in the category of "acting service" is considered "pensionable service" / qualifying service for pension; [iv] according to the pension scheme, the employee who had rendered "pensionable service" for 10 years and above, would be considered eligible for monthly pension during his life time and since the service rendered in the category of "acting service"
is, even according to the submission and admission by the petitioner AMTS, considered pensionable service, it would follow that the claimants who had rendered service of not less than 10 years in category of "acting service" would be entitled for monthly pension;
[v] according to Rule 25 of GCS (Pension) Rules defines qualifying service for the purpose of GCS (Pension) Rules only that category of service which fall under clause
(a) to (h) are not included in or can be excluded from qualifying service.
[vi] the service for 15 to 16 years (or more, in some cases) rendered by the claimants in the category of "Acting Service" would not fall under clause (a) to (h) of said Rule 25(1) i.e. under excluded categories.
[vii]Therefore, in any case, the claim for pension by the claimants - who had completed service of not less than 10 years in the category of "Acting Service" - could not have been discarded on the strength of any provision in the GCS (Pension) Rules.
(B) On the other hand, the facts related to the appointment and employment of the claimants have established that:-
[i] they were, undisputedly, appointed in accordance with service regulations and they Page 16 of 26 C/LPA/871/2017 CAV JUDGMENT were members of GPF as well as pension scheme right from first date of their appointment;
[ii] for entire tenure of their service they had worked regularly, continuously and without any break and they worked fulltime on the post of Driver/conductor/ workshop bodysmith, however, for initial 5 to 6 years the petitioner AMTS paid salary to the claimants on daily wage basis and after service of 5 or 6 years, their services were converted into category of "acting service"; [iii]total tenure of service of the claimant is 20 years (or more in some cases) and the tenure of their service in category of acting service is 15 to 16 years and all claimants would have reached age of superannuation, after 1.1.2005.
[iv] even if initial period of their service were to be excluded then also undisputed fact on record is that total tenure of claimants' service in the category of "acting service"
(which, even according to the petitioner AMTS, is considered eligible category of service for pension) was more than 10 years, rather it was not less than 15 or 16 years in case of each of the claimants. Consequently, the claimants fulfilled the criteria prescribed under the VRS of the petitioner AMTS and pension scheme of the petitioner AMTS and their case falls within purview of clause 3 of the pension scheme of the petitioner AMTS read with clause 2 of the VRS."
8. What, therefore, emerges from the record of the case is that except for a period of five years of service as daily wagers which also was rendered essentially in a substantive capacity after having been recruited through a regular mode of selection, the claimants in effect were regularly appointed and therefore were entitled to the benefit of Rule 25(1) of the 2002 Rules and the contention that in view of clause (c) the Page 17 of 26 C/LPA/871/2017 CAV JUDGMENT service was on a daily rated establishment was rightly negated by the Industrial Tribunal as well as by the learned Single Judge.
9. At the cost of repetition, we are supported to take this view, which even has been considered by the Industrial Tribunal in a judgement in the case of Kesar Chand vs. State of Punjab and Others reported in 1982 2 RSJ 629 wherein an identical question came to be considered. The question that was posed before the Full Bench of the Punjab and Haryana High Court was whether the petitioner before that Court who was a beldar could have been deprived of pensionary benefits merely because part of the service that he had rendered was as a work charge employee and whether his past service as such a work charge employee should be effaced from the record of service so as to deny him the benefit of pension. The Punjab and Haryana High Court held as under:
"20. In relaxation of Rule 3.17(ii) of Rules by the respondent-authorities, the service of sixteen work- charged employees was counted for pensionary benefits and gratuity vide Government of Punjab, Department of Irrigation and Power (Irrigation Branch) Memo No. 2/5/81/- IB(6)/16411 dated 7th November, 1982(Annexure P2) which reads as under :--
"Sanction of the Government of Punjab is accorded in relaxation of Rule 3.17 of Punjab Civil Services Rule, Vol. II for counting of previous work-charged service towards gratuity in respect of 16 work-charged employee of Nangal Workshop mentioned in the enclosed statement subject to the Conditions that no terminal benefit is/has been given to these work-charged employees Page 18 of 26 C/LPA/871/2017 CAV JUDGMENT at the time of regularisation of their service. Sanction of the Government of Punjab is also accorded to the counting of service of these 16 work-charged employees towards pension as a special case provided no benefit has already been drawn by them in lieu of pensionary benefits."
If respondent No. 1 has granted exemption from rules in certain cases, we do not find any justifiable reason for excluding others from the grant of pension and gratuity benefits. For this reason too, we find Rule 3.17(ii) is bad at law, as it enables the Government to discriminate between employees similarly situated.
21. In fairness to Mr. Bedi, the learned Addl. Advocate-General, the submission made by him may be adverted to. It was contended that (i) a work-charged employee completion of which his services come to an end, (ii) no order has been passed by the State Government confirming the petitioner against the post on which his services are regularised and resultantly he does not fulfil the conditions entitling a Government servant for pension, as envisaged by Rule 3.12 of the Rules. The counsel also tried to justify the Government action by placing reliance on Rule 1.4 of the Punjab Civil Services Rules, Vol. I. It was further contended that P.W.D. (B & R), Establishment Branch is not an industry and in support of this submission he relied on State of Punjab v. Kuldip Singh, ILR (1982) 2 Punj and Har 544 : (AIR 1983 NOC 94)(FB) and Om Parkash v. The Management of M/s. Executive Engineer, SYL Division, Kurukshetra, ILR (1984) 2 Punj & Har 215 : (1984 Lab IC 1165)(FB).
22. His first submission is divide of any merit. In para 3 of the petition, it is specifically averred that the petitioner had regular service, without any break of a single day, right from 1951 to the date of his superannuation in the year 1977. In the corresponding para of the written statement, this assertion has not been denied but the only plea Page 19 of 26 C/LPA/871/2017 CAV JUDGMENT taken is that his qualifying service for pension and gratuity starts from 15th August, 1972, i.e., the day from which he was brought on regular cadre; and that his service in the work-charged establishment does not count for pension under R. 3.17(ii) of the Rules. The plea that he has been in continuous service has not been denied. It appears that on the completion of one project, the petitioners were engaged in another project either with break in service or without any break. Every plea raised in a petition has to be specifically denied and in the absence of a specific denial, the assertions made in the petition will normally be deemed to have been admitted or at least the court can proceed on the basis that it is an uncontroverted fact. Since there is no denial by the respondents that the petitioner has been in continuous service since 1951, it would be presumed that he has been in continuous service till the date of superannuation. The second contention that no order has been passed by the State Government confirming. the petitioner against the post on which his services were regularised, and so on, is also without merit. The regularisation of services petitioner will be deemed to have been made permanent on the post against which his services have been regularised. This precisely appears to be the purport of the Punjab Government Memo (Annexure P7), and the award of the Industrial Tribunal dated June 1, 1972, published in the Government Gazette dated July 14, 1972, referred to earlier. In the award, it was specifically held that the work-charged employees who had put in three years of continuous service are entitled to be made permanent and to be confirmed after having put in five yeas' service as demanded by the workmen. The award may bind the workmen and the management of the P.W.D.(B & R) Establishment Branch. Technically speaking it may not be binding on other branches of the P.W.D. Once the services of a work-charged employee are regularised he will be deemed to be entitled to the benefit under R. 3.17 of the Rules."
10. Applying the same principle of law as so enunciated by Page 20 of 26 C/LPA/871/2017 CAV JUDGMENT the Full Bench in the case of Kesarchand (supra), when considered in the background of the facts of the case on hand and as reiterated by the learned Single Judge and as reproduced hereinabove by extensively reproducing para 7 of the judgement of the learned Single Judge, we see no reason why merely by branding the service of the claimant as being one on a daily rated establishment should be detrimental to the claimants/respondents for pension. The conclusions of the learned Single Judge therefore that the claimants' appointment had all the traits of it being an appointment on a substantive capacity, that therefore Rule 25 of the 2002 Rules was applicable and their services were "qualifying for the purposes of pension" need not be interfered with. When the scheme of pension is appreciated in light of the 2002 Rules, it cannot be said that the appointments of the claimants could not have been considered as "not on regular establishment". The claimants had rendered more than 20 years of service and therefore the Tribunal and the learned Single Judge committed no error in holding that their service qualified for the purposes of pension.
11. This brings us to the next question that is whether once having accepted voluntary retirement, was it open for the claimants to turn around and claim pension. On an overall consideration of the pension scheme and the voluntary retirement scheme and on a conjoint reading of all these which have been extensively reproduced by the learned Single Judge, what comes forth is that when the claimants accepted the voluntary retirement scheme, it was specifically made clear to them that such a scheme was made applicable in view of the fact that they were not entitled to pension. Little Page 21 of 26 C/LPA/871/2017 CAV JUDGMENT knowing that such an interpretation was made in contravention of the regulations and rules providing for the benefit of pension and realising that but for their denial of their tenure of service as a daily wager they would otherwise complete the qualifying service of 20 years, the claimants came forth for the redressal of the grievance which they were otherwise legally justified to. As rightly suggested by Mr. Pandya, learned advocate appearing on behalf of the respondents claimants by relying on the judgment in the case of Kerala State Road Transport Corporation vs. K.O Varghese and Others reported in (2003) 12 SCC 293 that pension is not a bounty. Being a valuable right and taking reliance that on a wrong interpretation of the provisions of law that an employer is denying such a benefit to the employee, the claimants were justified in approaching the Industrial Tribunal.
11.1 That pension is not a bounty and right to receive pension be treated as a right to property was laid down by the Supreme Court also in the case of Deokinandan Prasad vs. State of Bihar reported in (1971) 2 SCC 330. In the case of State of Himachal Pradesh vs. Rajesh Chander Sood and Others reported in (2016) 10 SCC 77, the Apex Court held that review of a pension scheme is permissible however and government can fix a cut-off date looking to its financial viability but a review so as to take away a right of pension retrospectively is not permissible. However, the position that pension is a right to property still holds good.
12. Moreover, delay ranging from two years to 7 years has been held against the employees and is the bone of contention Page 22 of 26 C/LPA/871/2017 CAV JUDGMENT of the employer to deny them such a benefit. In our opinion, that delay has also been taken care of by the learned Single Judge in moulding the relief accordingly by holding that the directions to give them pension will be effective from the date of the award and not from the date of reference. The learned Single Judge while disposing the petition has given the directions as reiterated in paragraphs no. 21 and 22 of the judgement which has been reproduced as under:
"21. The discussion in this decision has brought out that the decision and action of the petitioner AMTS rejecting the demand by the claimants for pension under and in accordance with the terms of VRS is also contrary to the provisions of VRS read with the provisions under the pension scheme/Rules of the petitioner AMTS and it deserved to be set-aside and that the learned Tribunal has not committed any error in setting aside the said decision and action of the petitioner AMTS. Though on different ground and though for different reasons, the learned Tribunal reached to correct and justified conclusion. The said conclusion and findings recorded by the learned Tribunal are correct and justified and do not warrant any interference.
21.1 Of course, in light of the fact that the learned Tribunal has granted the claim from the date of the claimants' retirement some modification with regard to the said final direction is required inasmuch as the claimants actually invoked the machinery under the I.D.Act and raised Industrial Dispute against the decision of the petitioner AMTS rejecting their claim for pension, after almost 7 years. Having regard to the said fact, learned Tribunal ought to have modified the relief by making the directions effective from the date of reference or from the date of the award instead of granting the benefit from the date their voluntary retirement became effective. This aspect is addressed by this Court and appropriate directions have been passed, in later part of this order.Page 23 of 26 C/LPA/871/2017 CAV JUDGMENT
22. In light of foregoing discussion and for the reasons mentioned and recorded above, it has emerged that the petitioner AMTS has failed to make out any ground against the conclusions and findings recorded by learned Tribunal with regard to the claimants' entitlement for pension, except so far as the effective date is concerned, i.e. the date from which the amount/arrears should be paid. For the reasons mentioned above, the direction as regards the effective date i.e. the date from which the pension amount/arrears should be paid deserves to be partly set aside and modified. Therefore, the petitions are disposed of with following directions.
In the result, the impugned award and the directions passed by learned tribunal are required to be partly confirmed and partly modified inasmuch as the learned Tribunal's decision holding that the claimants are entitled and eligible for pension and allowing the demand for pension is confirmed and that part of the decision is not disturbed, however, the direction to pay the arrears from the date of voluntary retirement under the VRS cannot be sustained. The said direction is required to be, and deserves to be set aside. Therefore, the said direction is set aside and modified by clarifying that the claimants are entitled for pension, however, they would not be entitled for actual payment of pension from the date of voluntary retirement to the date of reference by appropriate government but they shall be entitled for payment of pension amount/arrears only from the date of reference by appropriate government.
It is further clarified that the claimants will be entitled for payment of pension in accordance with the formula prescribed under the Pension Scheme and the VRS (from the date of reference). It is also clarified that it will be open to the petitioner AMTS to calculate the amount payable to the claimants in accordance with the provisions under the VRS and the Pension Scheme / Rules of AMTS and for calculating the pension amount, the petitioner AMTS may take into account such number of years of service as prescribed Page 24 of 26 C/LPA/871/2017 CAV JUDGMENT by/provided for by way of formula prescribed under its Rules.
It is also clarified that the claimants will be entitled for the said benefit only if the claimants are ready and willing to, and if they actually return the amount received from the petitioner AMTS by way of lump sum compensation or agree for adjustment against the amount to be paid towards pension/arrears. The claimants are given option on this count viz. either they may return entire amount received by way of lump sum compensation or the petitioner AMTS shall be entitled to adjust the amount already paid to them towards the arrears payable as per the direction in present order and the obligation to regularly pay the amount of monthly pension will commence on and from the date when full amount is adjusted. On the other hand, if the amounts paid to the claimants by way of lump sum compensation fall short of the amount payable in compliance of this order i.e. the amount/arrears payable from the date of order of reference by appropriate government till the date of the judgment, then, such amount arrears will be paid by the petitioner AMTS within eight weeks from receipt of certified copy of this order. The petitioner AMTS shall, thereafter, continue to pay pension to the claimants regularly every month in accordance with the provisions and formula under the VRS.
With aforesaid directions and clarifications, impugned award is partly set-aside and modified. The petitions are partly allowed to said extent. Rule made absolute to aforesaid extent. Orders accordingly."
12.1 The learned Single Judge, therefore, has taken appropriate care in seeing that no undue financial burden is made on the exchequer of the Corporation and the delay has rightly been taken care of in moulding the relief.
13. For the reasons as aforesaid, we see no reason to Page 25 of 26 C/LPA/871/2017 CAV JUDGMENT interfere with the impugned judgement and order passed by the learned Single Judge and accordingly appeals stand dismissed. No costs.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) FURTHER ORDER:
At this stage, learned counsel for the appellant prays to stay implementation, execution and operation of the judgement for a period of six weeks so as to approach the Apex Court, to which, learned counsel for the respondents - employees has objection. Considering the facts of the case, we see no reason to stay the judgement, more particularly, when the respondents - employees are waiting for their retiral / pension dues.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) DIVYA Page 26 of 26