Punjab-Haryana High Court
Kanwar Bhan vs State Of Haryana & Ors on 3 November, 2014
Author: Amol Rattan Singh
Bench: Amol Rattan Singh
CWP No.23417 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.23417 of 2013
Date of decision : 03.11.2014
Kanwar Bhan
...... Petitioner
Versus
State of Haryana and others
...... Respondents
CORAM : HON'BLE MR.JUSTICE AMOL RATTAN SINGH
***
Present:- Mr. Mayank Sharma, Advocate
for the petitioner.
Mr. Ashish Kapoor, Addl. Advocate General, Haryana
***
AMOL RATTAN SINGH, J.(Oral)
The petitioner who retired from the respondent department as a Clerk, on 28.02.2010, seeks quashing of the order dated 28.11.2013 (Annexure P-8), passed by respondent No.2, rejecting the petitioners' claim for refixation of his pension and other retirement benefits, by including the period of service rendered by him as a Peon in the Haryana State Minor Irrigation and Tubewell Corporation (in short "the HSMITC") from 24.04.1980 to 15.03.1993.
2. The facts as given in the petition, are that the petitioner had joined the HSMITC as a Peon on 24.04.19980, where he continued to work till 15.03.1993, after which, pursuant to his appointment by transfer vide order dated 09.03.1993 (Annexure P-1), he joined the Department of AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No.23417 of 2013 -2- Labour, Haryana, also as a Peon, on 16.03.1993. As per the said order, he was to remain on probation for a period of two years and if during that period, his work and conduct were found to be unsatisfactory, he would be reverted to his parent department. Thus, a lien was kept alive with the said Corporation, though that eventually may not have any bearing on the present case.
Thereafter, vide order dated 15.07.1993 (Annexure P-2), the pay of the petitioner was fixed in terms of Rule 4.4(c)(i), Volume I, Part I, of the Punjab Civil Service Rules (as applicable to State of Haryana), by taking into consideration the pay drawn by him in the HSMITC. This is obvious from the order itself and is not denied by the respondents.
3. After the petitioner retired on 28.02.2010, pension was fixed by the office of the Accountant General (A&E), Haryana, on 12.05.2010 by only taking into account his period of service rendered in the respondent- department, i.e. the Department of Labour, Government of Haryana and not the period of service spent by him in the HSMITC.
4. The petitioner represented on 08.07.2010 to the second respondent, for inclusion of the said period of service in the Corporation and thereafter, vide letter dated 09.08.2010 (Annexure P-5), addressed to the Deputy Director and the Assistant Director, Industrial Safety and Health, Panipat, he requested that he be informed as to what was now payable by him so that he could deposit the same and take "full benefits of my service". The reference was to the amount paid to him from the Employees Provident Fund (Rs.30,000/-) after his retirement on 26.04.2010, in respect of the period served by him in the HSMITC.
AMIT RANA2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No.23417 of 2013 -3-
5. What is actually meant to be stated in the said letter, as stated in the writ petition also, is that the retirement benefits as he had been paid in respect of his service in the HSMITC, be taken back from him with interest, so that he could avail of the benefit of pension from the respondent- department, on the ground that he taken no benefits from the HSMITC.
However, with no response having been given to him by the respondents on his representations, he eventually filed CWP No.22570 of 2012 in this Court, seeking the same relief as is sought in the present petition.
The said petition was disposed of vide order dated 16.11.2012, by a coordinate Bench, directing the respondents to take a decision as per merits, on the representations made by the petitioner, by passing a speaking order.
Thus, it is in response to the above directions that the impugned order dated 28.01.2013 has been passed, rejecting the claim of the petitioner.
6. The ground for rejection is that in terms of the Haryana Government instructions dated 07.01.2002 (Annexure P-9 with the petition), the petitioner was required to exercise his option for getting the benefit of qualifying service rendered in an Autonomous/Statutory Body prior to the employee being employed in a Department of the Government of Haryana. Therefore, reasoning given in the order, which is also the stand taken in the reply now filed to the petition, is that since such option was not exercised by the petitioner within 6 months of his appointment in the Department of Labour, he cannot avail of the benefits. AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No.23417 of 2013 -4-
7. Mr. J.S. Bedi, learned counsel for the petitioner, submitted that the stand taken by the respondents is wholly absurd, in view of the fact that the petitioner was appointed in the respondent-department in the year 1993, whereas the instructions which are sought to be relied upon to reject the case of the petitioner, are dated 07.01.2002, i.e. almost 9 years after the petitioner joined service.
Further, Mr. Bedi pointed out that even as per the said instructions, a perusal of the last line thereof after clause 13, shows that the said memorandum (dated 07.01.2002) was to be brought to the notice of all concerned. He submitted that the said memorandum was never individually brought to the notice of the employees and as such, those at the lower level, i.e. Class III and IV, especially Class IV, could not be expected to know about the same, which has also been stated by the petitioner specifically in his petition.
Mr. Bedi then relied upon a judgment of the Supreme Court in DHBVNL Vs. Bachan Singh, 2009 (14) SCC 793, wherein it was held as follows:
"16. The High Court in its impugned judgment had categorically observed that the appellants had failed to produce any record showing that the instructions dated 06.08.1993 and 09.08.1994 were actually got noted in writing from the respondent. The appellants had also failed to produce such material from which it can be inferred that the respondent had any knowledge about the options called by the appellants vide instructions dated 06.08.1993 and 09.08.1994. The High Court also observed that in this view of the matter it would be unreasonable to deny pensionary benefits to the respondent and the similarly placed respondents."
With regard to the right of employees to draw equal pension as AMIT RANA similarly placed persons, it was held as under:- 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No.23417 of 2013 -5-
"20. This Court has taken the view that pension is rewarded for long service rendered by the employee and is not a bounty. The Supreme Court in Subrata Sen & others Vs. Union of India (SCC P.78, para 14) held that:
"14....As observed in Nakara's case, pension is neither a bounty, not a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past services rendered. It is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in the lurch..."
21. The appellants had issued circulars dated 06.08.1993 and 09.08.1994 for giving pensionary benefits to the respondent and similarly placed employees.
22. This Court time and again had observed that the principle underlying the guarantee of Article 14 of the Constitution is that all persons similarly placed shall be treated alike, both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation without any discrimination."
Thus, Mr. Bedi submitted that the action of the respondents in denying the petitioner his right, is wholly arbitrary and without any basis. He, therefore, prayed that the writ petition may be allowed and the petitioner be given his due as per law.
8. Per contra, Mr. Ashish Kapoor, learned Addl. Advocate General, Haryana, reiterated the stand of the respondents, as given in the impugned order and in the reply filed by them, to the effect that the option as was required to be exercised by the petitioner was not exercised within 6 months from the date of joining the new department.
9. After hearing counsel for the parties and perusing the pleadings before this Court, I am of the opinion that this petition deserves to be allowed.
The absurdity of the stand taken is only too obvious, inasmuch as the petitioner could not exercise his option within six months of his AMIT RANA joining the respondent department on 15.03.1993, in terms of the 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No.23417 of 2013 -6- instructions which were issued only about 8 ½ years later. Of course, though that is not the stand taken in the reply or in the impugned order, such option obviously could have been exercised within six months of the issuance of the instructions, however, apart from the fact that such is not even a stand of the respondents, a perusal of the last line of the said instructions dated 07.01.2002 shows that it reads as under:-
"The contents of this Office Memorandum may please be brought to the notice of all concerned".
Thus, the contents of Clause 9 which stipulates that the option of the employee with regard to counting of his service in a Statutory/Autonomous Body is to be exercised within six months, obviously had to be brought to the notice of the employee concerned. Strangely, the specific stand of the petitioner in this regard has been replied to in para 3 (i) of the written statement by stating that "it was his duty not the duty of the answering respondents to make the petitioner aware of his rights/obligation and it was up to him to take care of his interest". Whereas, naturally ignorance of law is not an excuse, however, in the entire circumstances of the present case, where the conditions of a letter issued 9 years after the petitioners' appointment in the respondent department, are being used to deny him the benefit of the same, on the ground that the option stipulated 9 years later should have been exercised 9 years earlier, is too absurd a proposition to even comment further upon, as already observed earlier.
Further, as has been held by the Apex Court in the case of Bachan Singh (supra) and numerous other judgments, pension is not a bounty but a right earned by an employee after long years of service. As such, to deny him the said right on the basis of technicalities, obviously AMIT RANA cannot stand scrutiny.
2015.04.27 12:26I attest to the accuracy and authenticity of this document Chandigarh CWP No.23417 of 2013 -7-
10. In view of what has been discussed above, this petition is allowed and the impugned order dated 28.01.2013 (Annexure P-8) is quashed. The respondents are directed to take into account the service rendered by the petitioner from 24.06.1980 to 15.06.1993 in the Haryana State Minor Irrigation and Tubewell Corporation for the purpose of fixing his pension and for grant of other retiral benefits. The respondents shall do the needful within a period of 2 months from the date of receipt of a certified copy of this order and make payments to the petitioner along with interest, running from the first day after the petitioners retirement, till the date that other retirement benefits paid to him on the basis of his previous service.
Any retirement benefits already paid to the petitioner in respect of his service rendered by him in the HSMITC, as are required by law to be refunded by him, with interest, shall be refunded by the petitioner within the aforesaid period of two months, or shall be adjusted by the respondents commensurately from his retirement benefits. The rate of interest to be paid to the petitioner on the arrears of retirement benefits now ordered to be paid, shall be the same as will be charged from him on the amount to be refunded by him.
( AMOL RATTAN SINGH )
03/11/2014 JUDGE
vcgarg
AMIT RANA
2015.04.27 12:26
I attest to the accuracy and
authenticity of this document
Chandigarh