Punjab-Haryana High Court
Dharam Singh vs State Of Haryana on 16 February, 2001
Author: Bakhshish Kaur
Bench: Bakhshish Kaur
JUDGMENT Bakhshish Kaur, J.
1. Dharam Singh, petitioner joined the service of the erstwhile Punjab PWD, Electricity Branch on'8.6.1957 as Assistant Lineman. The Punjab Electricity Board (hereinafter referred as PSEB) came into being on 1.4.1959. On the re-organisation of the State of Punjab and creation of Haryana State, his services were placed at the disposal of Haryana State Electricity Board (in short Board) w.e.f. 1.11.1996. He was originally State Government employee entitled to pensionary benefits and his conditions of service cannot be changed to his detriment. The Board adopted a regulation in 1962, applicable to the erstwhile Government servants of the Electricity Department including those on probation, who were at first transferred to foreign services terms to the Board on the formation of the Board. The following decision was taken :-
"(1) Pay. They shall be allowed the same scales and rates of pay as they were drawing under the Punjab Government on the eve of their transfer to the Board and as they would have drawn in their pre-sent post or in the higher posts, due to annual increments/or promotion, had they continued under the Punjab Government, but for the formation of the Board. Their other terms and conditions of service will remain the same as they stood on the date of transfer to the Board and no change will be made to their disadvantage. The Board will, however, be the final authority in place of Punjab Government and consultation with the Public Service Commission will not be necessary."
2. The employees Provident Fund Scheme (in short Scheme) has been made applicable to work charged employees of HSEB and not regular permanent employees like the petitioner. This is clear from the letter dated 31.1.1996, Annexure P-1.
3. Although, he was not covered by the scheme, norhe opted for the same but he was made a member of the scheme. He had been representing for the grant of pensionary benefits on the ground that he was entitled to the pension, under the original terms and conditions of service as an employee of the Electricity Depart ment of erstwhile Punjab Government, the respon dents did not take any action on his demand till his re tirement from service.
4. It is further averred that the Board vide memo dated 12th January, 1993, Annexure P-1/1 addressed to all the Executive Engineers of the Board desired information in respect of the employees who wanted to switch over from EPF to GPF scheme. No such information was ever sought from the petitioner by the concerned Executive Engineer, with the result he could not exercise his right to switch over from his EPF scheme to GPF scheme. Now, the Board had framed a policy, Annexure P-2, according to which, every employee of the Board, who was the member of the EPF and wants to change over to pension scheme could do so. In pursuance of this policy, the petitioner opted for pension scheme vide his representation Annexure P-3. Nothing has been done in respect thereto. A demand notice dated 12.7.1997 was also served upon respondent No. 2 but even then, it had no effect.
5. One Hans Raj son of Ram Chand, who retired as Foreman Grade-Ill, a member of the EPF scheme, till the date of his retirement claimed pensionary benefits, which was refused. He had filed CWP No. 10541 of 1991 for counting his work charged service besides claiming pension. It was allowed on 24.10.1991. SLP preferred against that order was dismissed by the Hon'ble Supreme Court.
6. The petitioner had been making representations repeatedly to consider his case, on the strength of the decision of this Court in the case of Kesar Chand, 1989(1) RSJ 629, Sita Devi, 1990(1) RSJ 471, Hans Raj, CWP No. 10541 of 1991 and Supreme Court decision in SLP No. 13558 of 1992, but they have refused to do so. The respondent's action in not granting the pensionary benefits to the petitioner is wholly arbitrary, malafide, illegal, discriminatory and unconstitutional being violative of Articles 14 and 16 of the Constitution of India and fair play. Therefore, by invoking the extraordinary jurisdiction of this Court, he had filed the civil writ petition under Articles 226, 227 of Constitution of India, for the issuance a writ of mandamus directing the respondents to grant the pensionary benefits to the petitipners instead of the EPF benefits w.e.f. 31.8.1991.
7. Respondents No. 2 and 3 in their joint written statement have raised preliminary objections that the petitioner has tried to mislead the court by making a wrong reference of instructions and by concealing the factual position. Therefore, the writ deserves to be dismissed. Infact, on the creation of State of Haryana and consequent creation of Haryana State Electricity Board w.e.f. 1.11.1966, the petitioner's services were allocated to the Board as per the zone option. As he was already a member of EPF, therefore, he was al-owed to be continued in the said scheme, in the absence of any option of the petitioner for switching over to the EPF Scheme. He had continued to avail the benefit of the Scheme during entire period of his service without any protest, without any representation. He had also got all the benefits of the scheme and got consequential benefits upon his retirement on 31.8.1991 on attaining the age of superannuation Now, after a long period, for the first time, he has made a representation on 18th June, 1997, Annexure P-3 showing his willingness to deposit the entire amount of PPF for switching over to the scheme of the GPF, which cannot be allowed at a belated stage. His entire claim is based upon the instructions issued by the Board on 12.1.1993, and the subsequent instructions dated 6.8.1993. So far as the instructions dated 12.1.1993, Annexure P-1/1 is concerned, the option for switching over the GPF scheme was sought from the existing employees only and not from the retirees. Therefore, these instructions are not applicable in the case of the petitioner, who had already retired on 31.8.1991. Likewise, the subsequent instructions dated 6.8.1993, Annexure P-2 is concerned, the same relates for grant of the benefit to work charged services followed by regular service which too is not the case of the petitioner. Therefore, the entire claim of the petitioner based upon these instructions is wholly baseless and frivolous. On merits also, these pleas have been reiterated. It is further pleaded, inter alia, that at the time of allocation of the services of the petitioner to HSEB, he preferred to avail of the benefit of EPF scheme and also got the benefit in cash at the time of his retirement on 31.8.1991.
8. Mr. U.K. Sahni, Advocate for the petitioner and Mr. A.K. Gayalt, AAG, Haryana for respondent No. 1, had appeared and none appeared on behalf of respondents No. 2 and 3.
9. Some of the facts, which are not in dispute are that the petitioner had joined the services as Assistant Lineman in Punjab PWD Electricity Branch on 8.6.1957, and on the constitution of PSEB on 1.4.1959, he became its employee. On further re-organisation of the State of Punjab, his services were allocated to HSEB.
10. On August 6, 1998, HSEB adopted a scheme for grant of pension to the employees, who were earlier contributing to EPF but want to opt for grant of pension and other retiral benefits as per letter Annexure P-2. One of the conditions was that such employees would have to refund in lump sum their amount of EPF lying in credit with the HSEB. They were also required to furnish their option in writing. The option once exercised shall be final and not to be allowed to be changed in any circumstances. The option was to be given within three months.
11. Though, nobody has appeared on behalf of respondents No. 2 and 3, yet in the written statement, they have taken up a plea that the petitioner's case is not covered under the letter, Annexure P-2, dated 6.10.1993, because he had already retired from service in the year 1991. There does not appear to be any logicin this submission because Annexure P-2, nowhere provides that it would be applicable prospectively and not retrospectively. In para 3, it is specifically mentioned as under :-
"Similarly, the above benefits will also be available to the pensioners/ receipient of family pension of the Board on the same terms and conditions with the exception that they will have to deposit the amount contributed by the Board as "employee's contribution towards EPF alpngwith interest thereon, in lump sum. The petitioners/recipient of family pension will have to give an affidavit to the fact that he/she will not claim any interest on the arrear of pensionary benefits which becomes/payable due to adoption of the State Government circular. The pensioners/receipient of family pension will submit their option within 3 months from the date of issue of this circular, for availing pensionary benefits, to the Head of the office last attended."
It is, therefore, clear that the petitioner though retired earlier to the issuing of the letter, Annexure P-2, yet he being pensioner was entitled to the benefit as contained in this letter. The employees who had already retired, were required to be intimated by the department concerned by issuing a copy of the letter for the information and requiring them to exercise their option. In the given case in hand whether respondents No. 2 and 3 had intimated the petitioner to exercise his option within the stipulated period ? The answer to this quarry in negative. They cannot be allowed to take the benefit of their own wrong by taking up a plea that the petitioner's claim cannot be accepted as he was unable to exercise option during his entire service, or that he got the benefit of EPF scheme in cash at the time of his retirement on 31.8.1991. It is pertinent to note that on the date of his retirement, the letter An-nexure-2, dated 6th August, 1993 was not in existence. It will also not be out of place to mention here that the similar placed persons have already been granted the benefit under letter, Annexure P-2. The concession was also given to Munshi Ram, Dalip Singh and others. The writ petition filed by Munshi Ram and Ram Lal was allowed as per Annexure P-5, by Division Bench of this Court. The respondents, however, had taken up a plea before the President of Lok Adalat of the High Court that the concession was made by the counsel in Munshi Ram's case unauthorisedly. No weightage can be given to this argument because in a similar case CWP No. 10541 of 1991, Mans Raj was allowed pensionary benefits. SLP No. 13558 of 1992 against the decision was dismissed by the Hon'ble Supreme Court. In other words, when a specific decision has been taken by the Board in its meeting dated 23rd June, 1993' and letter Annexure P-2 dated 6.8.1992 was issued no prejudice will be caused to the respondents because one of the conditions laid therein is that when a person opts for pensionary benefits, he has to refund the entire amount of employer's contribution alongwith interest thereon towards their EJPF in lump sum for crediting in Board's account. The employee'scontribution alongwith interest has to be deppsited with the Board for crediting to his GPF account. Taking into consideration these facts, the petitioner is also entitled to the benefit granted to its employees by the Board as above.
12. For the aforesaid reasons, this writ petition is allowed. The respondents are directed to pay the pensionary benefits to the petitioner in accordance with the letter Annexure P-2. The petitioner is also directed to refund the entire amount of employees contribution alongwith interest accrued thereon toward their EPF in lump sum for crediting to the Board's account within two months and thereafter, the pensionary benefits shall be payable to the petitioner in accordance with letter. Annexure P-2, within two months.
13. Writ petition allowed.