Punjab-Haryana High Court
Ishwar Chand Jain vs Punjab & Haryana High Court Chandigarh ... on 30 July, 2018
Bench: A.B. Chaudhari, Kuldip Singh
LPA No.371 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA No.371 of 2010 (O&M)
Date of decision : July 30, 2018
Ishwar Chand Jain ....... Appellant
Versus
Punjab & Haryana High Court and another ....... Respondents
CORAM : HON'BLE MR. JUSTICE A.B. CHAUDHARI
HON'BLE MR. JUSTICE KULDIP SINGH
Present:- Appellant-Ishwar Chand Jain in person.
Mr. Swarn Sandhir, Presenting Officer.
Mr. Ravi Dutt Sharma, DAG, Haryana.
1. Whether the Reporters of local newspaper may be allowed to
see the judgment ? Yes
2. To be referred to the Reporter or not. Yes
3. Whether the judgment should be reported in the digest ? Yes
KULDIP SINGH J.
The present Letters Patent Appeal has been filed by the
appellant against the judgment dated 01.07.2009 passed by the Single
Bench of this Court in CWP No.12391 of 2003, vide which only partial
relief was granted to him to the effect that his pension was ordered to be
computed in terms of the proviso to rule 18(1)(b)(i) of the All India Services
(Death-cum-Retirement) Rules, 1958 as interpreted above within three
months from the receipt of copy of that order. The interest @ 8% per annum
on the arrears was also allowed.
The brief facts of the case are that the appellant, who had
obtained Advocates' licence on 06.11.1968, on his selection, joined as Addl.
District and Sessions Judge at Hisar in Haryana on 02.05.1983 from the
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quota of the Bar. In the year 1984-85 when he was posted at Narnaul, on
account of certain complaints made against him, the Full Court vide
Resolution dated 21.02.1985 terminated his services. A writ petition filed by
him challenging his termination was dismissed by this Court vide order
dated 09.12.1986. However, Hon'ble the Supreme Court of India in the
appeal reinstated him in service. Thereafter, he was posted as Addl. District
and Sessions Judge, Narnaul on 09.06.1988. On 06.01.1992, a complaint
dated 26.12.1991 was received against the appellant. On which, a
preliminary inquiry was conducted and report was submitted on 20.02.1992.
Thereafter, another set of complaints was submitted by Shri K.C. Sharma,
Advocate, Jind, regarding which preliminary inquiry was ordered to be
conducted. In this regard, report was submitted on 10.04.1992. The Full
Court on 24.04.1992 decided to charge-sheet the appellant and withdraw the
judicial work from him. Since, the appellant had come in the zone of
consideration for designation as District and Sessions Judge on 27.07.1992
but the same was not approved as his judicial work had already been
withdrawn from him. On account of the Resolution passed by the Full
Court, a charge sheet was issued to him on 29.07.1992. On 28.09.1992, he
was considered for selection grade but was not granted on account of
pendency of the aforesaid charge-sheet. After considering the reply filed by
the appellant, the Full Court decided to hold regular departmental inquiry
and placed him under suspension in the meeting held on 29.09.1992.
Consequently, vide order dated 03.10.1992 the appellant was placed under
suspension. In the meanwhile, the appellant attained the age of 55 years.
Therefore, the Full Court vide Resolution dated 12.12.1995 recommended
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to the Government of Haryana to retire the appellant forthwith in public
interest by giving three months pay and allowances in lieu of notices. It was
ordered that the inquiry will continue for the limited purpose of imposing
cut in his retiral benefits. However, vide another Resolution dated
17.01.1996, the Full Court decided that departmental proceedings be not
proceeded for the present and departmental inquiries against him are
deemed to have been dropped. Consequently, vide order dated 10.05.1996,
the appellant was compulsory retired w.e.f. 17.05.1996. The appellant
challenged his premature retirement by way of filing CWP No.2091 of
1996. The said petition was allowed by this Court vide judgment dated
22.05.1998 and the order of his compulsory retirement was set aside. The
said order was affirmed by Hon'ble the Supreme Court vide order dated
26.04.1999. The appellant was not immediately reinstated and rather the
Full Court in the meeting held on 28.05.1999 decided to constitute a
committee of three Judges to look into the matter regarding implementation
of the judgment of Hon'ble the Supreme Court. The committee submitted its
report on 01.06.1999, which was considered by the Full Court on
02.06.1999 and it was decided that the appellant be allowed to join duty. It
was also decided that the inquiry which was dropped by Resolution dated
11.01.1996 be revived and the appellant be placed under suspension.
Consequently, the appellant was allowed to join duties and thereafter,
placed under suspension and the inquiry was revived. The appellant again
challenged the said action of this Court by way of filing CWP No.15669 of
1999, which was decided by the Division Bench of this Court, vide order
dated 02.06.2000. The said petition was partly allowed and the suspension
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order (Annexure P-1) was quashed. However, his prayer for quashing the
charge-sheet and the decision taken by this Court to revive the inquiry was
rejected with liberty to him to raise his objections to the charge-sheet before
the inquiry officer. The issue regarding re-designation of the appellant as
District and Sessions Judge, release of selection grade and payment of other
dues was ordered to be decided after the conclusion of the departmental
inquiry. The appellant again approached Hon'ble the Supreme Court of
India by way of filing SLP. Hon'ble the Supreme Court of India ordered that
inquiry was to continue but its finalization was stayed. Since, the order of
quashing of suspension was not implemented, therefore, the appellant filed
COCP before this Court. While all these proceedings were continued, the
appellant filed representation dated 05.01.2002, which is reproduced as
under:
"........ I have retired and have recently under-gone
open heart bye-pass surgery and do not want to involve
myself in unnecessary personal litigation. As per the
rules (as I understand) maximum punishment which
can be imposed on a retired employee is the cut in the
pension to the extent of 33% and that to depending
upon the fact whether the pension is sufficient for the
maintenance of the retired employee and his family. I
have been sanctioned a provisional pension of
Rs.4993/- p.m and one third of it comes to Rs.1331/-. In
order to avoid further litigation/hardship and
embarrassment and without going into the merits of the
case I voluntarily offer a cut of Rs.1331/- p.m in my
pension provided the enquiry is dropped/not proceeded
further and all my due/dues becoming due is
released/paid to me."
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The appellant also withdrew his COPC. The Full Court vide its
Resolution dated 26.07.2002 passed the following order:
"Representations dated 5.1.2002 and 17.1.2002 of Sh.
I.C.Jain Member Superior Judicial Service Haryana
who retired from service on 31.10.2000 considered
along with the report of Registrar and the request of
Sh. I.C. Jain is accepted."
In view of the matter, the SLP filed by the appellant was
dismissed as infructuous. The pension after imposing 1/3rd cut and other
retiral benefits were released to the appellant.
Before the Single Bench, the appellant claimed the following
reliefs:
1. Release of selection grade/ super time scale from
the date his juniors were designated.
2. Benefits of Rule 4.2-A of Civil Services Rules,
1972.
3. Benefits of addition of 10 years practice at Bar
under Rule 16 of the Superior Judicial Service Rules,
1963 for the purpose of retiral benefits.
4. To calculate his pension after allowing
abovenoted reliefs, his pension should be fixed on the
basis of last pay/emoluments drawn by him on the date
of retirement on 32 years of qualifying service or 50%
of the minimum of pay of the post held by the appellant
at the time of retirement, whichever is higher.
5. Interest on the amount of arrears of pension for
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the delayed period i.e. from 01.02.2001.
6. To grant the pension without imposing cut of
1/3rd.
We have heard the appellant in person, the Presenting Officer
and learned State counsel as well and have also carefully gone through the
case file.
We will take up the issue of grant of selection grade first.
Admittedly, the litigation between the appellant and the High
Court reproduced above shows that for one or the other reason as discussed
above, the appellant was involved in long litigation with his employer. He
had to approach this Court as well as Hon'ble the Supreme Court repeatedly.
On behalf of the High Court, it is stated that the selection grade
was not allowed to the appellant on account of ACR recorded as grade 'B-
Satisfactory' for the year 1988-89 and grade 'C-Integrity doubtful' for the
year 1991-92. The information obtained by the appellant under RTI shows
that in CWP No.4991 of 1993, a Single Bench of this Court ordered that
ACR for the year 1988-89 is to be recorded as 'Good'. It appears that the
office did not implement the said order and did not correct its record.
Therefore, the ACR for the year 1988-89 was continued recorded as 'B-
Satisfactory'.
However, in view of the judgment of this Court, it should be
recorded 'B-Satisfactory'. Second is for the report for the year 1991-92,
which is recorded as 'integrity doubtful'. When the appellant was
prematurely retired on the basis of said report. He approached the Apex
Court. The Apex Court in Civil Appeal No.2465 of 1999, titled as "High
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Court of Punjab and Haryana through R.G. vs Ishwar Chand Jain and
another, AIR 1999 Supreme Court 1677, while setting aside of his order of
pre-mature retirement of the appellant, ordered that the ACR for the year
1991-92 is to be kept aside. The order was passed after considering in
detailed circumstances, under which the appellant was compulsory retired.
The relevant extract from the said judgment is reproduced as under:
"Keeping in view the aforesaid principles we may
examine the background under which the order
compulsorily retiring Jain came to be passed. In
December, 1995 judges comprising the Full Court
were not the same as that in the year 1985 when
probation of Jain was terminated. There were new
appointments of Judges and there were judges, who
had come on transfer from other High Courts. They
could not be aware of the circumstances leading to
termination of the probation of Jain and ACR given to
him for the year 1984-85. In the precis of the ACRs for
the Full Court ACR given to Jain For the year 1984-
85 was Shown as "C-Below Average." The inspecting
judge for the year 1984-85 had graded the officer as
"B+Good" but the Full Court modified the same to "C-
Below Average." This Court in earlier appeal filed by
Jain against termination of his probation held that the
modification of the entry by the High Court was
without any material and was not sustainable in law. It
meant that the Supreme Court restored the grading of
Jain in his ACR for the year 1984-85 as "B+Good."
There is no indication of this in the precis prepared by
the Registry which certainly would have misled many
of the judges of the Full Court. There is no ACR
recorded for the years 1992-93, 1993-94, 1994-95 and
for nine months of 1995-96 when the Full Court met on
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December 12, 1995. In its earlier meeting on
September 22, 1995 it recorded ACR for the year 1991-
92 grading Jain as "C-integrity doubtful." In coming to
this conclusion Full Court relied on the inspection
report prepared by the inspecting Judge on February
22, 1992 where he graded Jain as "integrity doubtful"
and gave his note which we have quoted above. There
is no material forthcoming as to why the inspection
report of February 1992 came to be considered by the
Full Court in September, 1995 and why there could be
no inspection from that year till holding of the Full
Court meeting. Inspection note by the inspecting Judge
gives an impression that he inspected the Court of Jain
and visited the bar room before he gave his report.
Fact, however, remains that the inspecting Judge
inspected the Court of Jain only in March, 1992.
Inspecting Judge also noted that there were some
complaints which formed the subject-matter of the
disciplinary proceedings against him. This also does
not appear to be correct inasmuch as on the date of the
inspection report no disciplinary proceedings were
pending against Jain. There were also no particulars of
the complaints whether these were in writing or oral
and if these related to the judicial work performed by
the officer. At least some of the cases in which Jain was
found to have acted improperly could have been
mentioned when there were many complaints from the
members of the Bar, The inspection note is certainly
flawed and could not have formed the basis by the Full
Court to record that integrity of the officer was
doubtful and to grade him "C". Moreover we were told
at the bar and it was not contradicted that the
Inspecting Judge took charge of Jind district only on
November 21, 1991 and within three months, i.e., on
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February 25, 1992 gave his inspection report. This is
certainly not satisfactory. The ACR for the year 1991-
92 is, therefore to be kept aside. That being the
position if we now refer to the precis of the ACRs of
Jain there were only four ACRs and these are for the
years 1983-84 (B-Average/satisfactory), 1984-85
(B+Good), 1988-89 (B- Satisfactory) and 1989-90
(B+good)). On the basis of these ACRs it is difficult to
hold that the recommendation of the High Court could
be justified under clause (c) of third principle laid in
Baikunth Nath Das case. (1992 AIR SCW 793)"
It goes to show that the said adverse ACR for the year 1991-92
was ordered to be kept aside and not to be considered. The information
obtained by the appellant through RTI on 22.02.2014, shows that he was
not granted selection grade as he was placed under suspension. On
12.10.1995 and on 07.04.1997, he was passed order for selection grade on
the basis of his service record. On 19.11.1999, the matter of the selection
grade was deferred. On 14.07.2000, the matter regarding selection grade
was deferred as he was under suspension and departmental inquiry was
pending.
It is to be noted that since the adverse ACR for the year 1991-
92 was to be kept aside and the suspension of the appellant was later on
quashed by this Court, therefore, in our considered opinion, the appellant is
entitled to the selection grade and supertime scale from the date it was
granted to his juniors. Since, his juniors might have retired, therefore, if
necessary one supernumerary post shall be created in the selection
grade/supertime grade to grant the said benefits to the appellant without
disturbing his juniors.
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Now, we come to the claim of the appellant regarding
extending him the benefits of Rule 4.2-A of the Punjab Civil Services
Rules, Volume II by adding certain period in his service at the time of
retirement. The relevant Rule 4.2-A of the Punjab Civil Services Rules,
Volume II is reproduced as under:
4.2-A. An officer appointed to a service or post may
add to his service qualifying for superannuation
pension (but not for any other class of pension) the
actual period not exceeding one fourth of the length of
his service or the actual period by which his age at the
time of recruitment exceeds twenty-five years or a
period of five years whichever is least, if the service or
post is one:-
(a) for which post graduate research or specialist
qualification, or experience in scientific, technological
or professional fields is essential and
(b) to which candidate or more than twenty-five years
of age are normally recruited:
Provided that this concession shall not be admissible to
any such officer unless his actual qualifying service at
the time he quits Government service is not less than
ten years.
Provided further that any such officer whose recruited
at the age of thirty-five years or more may, within a
period of three months, from the date of his
appointment, elect to forego his rights to pensions
whereupon he shall be eligible to subscribe to a
Contributory Provident Fund.
Note-1: The option once exercised shall be final.
Note-2: The decision to grant the concession under this
rule shall be taken by the Administrative department of
the time of recruitment in consultation with the Finance
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Department and the Public Service Commission.
The consultation with the Public Service Commission
will be restricted to those posts only which fall within
their preview.
2. This rule shall apply in respect of persons who
are recruited after the 26th October, 1960."
It appears that the High Court was of the view that a period of 4
years, 4 months and 15 days is to be added in qualifying service. Therefore,
the High Court addressed a communication dated 12.01.2001 (Annexure P-
9) to the Chief Secretary to Government of Haryana, Chandigarh, for
addition of 4 years, 4 months and 15 days in his qualifying service for
pension.
However, strangely enough, vide another letter dated
20.08.2001 (Annexure P-10) the said letter was withdrawn on the ground
that the pension case of the appellant is to be governed by the All India
Services (DCRB) Rule, 1958.
We are of the view that the case of the appellant is governed by
the Punjab Civil Services Rules as applicable to the State of Haryana and
not by the All India Services (DCRB) Rules, 1958. Therefore, the High
Court had correctly requested the Government of Haryana to add the period
of 4 years, 4 months and 15 days in the qualifying service of the appellant
for the purpose of pension.
Consequently, we are of the considered view that a period of 4
years, 4 months and 15 days is to be added in the qualifying service of the
appellant for the purpose of pension.
Now, we come to the claim of the appellant for the benefits of
Rule 16 of the Punjab Superior Judicial Services Rules, 1963 for adding 10
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years practice at Bar in his service for the purpose of retial benefits.
We are of the view that the appellant is not entitled to the said
benefits. At the initial stage when a direct recruit from the Bar joins as Addl.
District and Sessions Judge, he is granted the benefits of the certain period
of his practice and his pay is, accordingly, enhanced.
The appellant cannot claim the benefits of said practice at Bar
twice, firstly at the initial stage and second time at the time of retirement.
Further, the said Rule was introduced much later by way of making
amendment in the Rules on 20.02.1990. Therefore, the appellant is not
entitled to the addition of said 10 years of practice at Bar towards the
qualifying service for the purpose of retiral benefits. Therefore, the said
relief of the appellant is declined.
The appellant, who is present in person has argued that 1/3rd cut
in his pension was imposed after dropping the inquiry. He has stated that the
said cut could not be imposed unless he is held guilty. He has further argued
that the charge-sheet was not approved by the Full Court. Therefore, no
inquiry could be held against him.
On behalf of the High Court, it has not been disputed that the
charge sheet was dropped and 1/3rd cut in the pension of the appellant was
imposed on the basis of his own request.
We are of the view that imposing 1/3rd cut in the pension is a
punishment. The said punishment could not be awarded until the appellant
is held guilty in the departmental inquiry either on merits or on the basis of
his own admission. The history of the appellant shows that he had to
approach the High Court and Hon'ble the Supreme Court several times.
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Ultimately when even after his retirement, inquiry continued, he made a
request that he is ready to accept 1/3rd cut in the pension. The Resolution
dated 26.07.2002 passed by the Full Court, shows that it was taken as a
representation, which was considered with the report of the Registrar and
the request of the appellant was accepted.
We are of the view that this was not the representation. The
appellant having been forced in constant litigation with the High Court as
discussed above soon after his joining service, was pushed to wall and he
wanted to rest in peace. That is why, he had made the representation, the
extract of which are reproduced above. It goes to show that the appellant
had undergone heart by-pass surgery. He did not want to involve in
unnecessary litigation. Therefore, he voluntarily offered a cut of 1/3rd in the
pension amounting to Rs.1331/-, provided inquiry is dropped and not
proceeded further and all his dues are released.
It is not disputed by the learned counsel for the High Court that
inquiry was dropped.
We are of the view that once the inquiry is dropped and the
appellant is not held guilty and the request having been made under distress
to avoid litigation, the High Court was not justified in imposing the
punishment of cut of 1/3rd in the pension of the appellant, treating the
request of the appellant as representation to accept the punishment.
We are of the view that until or unless the appellant is held
guilty either on the basis of proved charge sheet or on the basis of
admission, no punishment could be awarded. The request made by the
appellant is deemed to have been made under coercion and distress. Hence,
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the order imposing 1/3rd cut in the pension of the appellant is also set aside
and it is held that the appellant is entitled to full pension.
As a result of the foregoing discussions, we pass the following
order:
ORDER
1. The Full Court Resolution dated 26.07.2002 followed by the consequent orders imposing 1/3rd cut in the pension is set aside. The appellant is held entitled to full pension.
2. The appellant is held entitled to the selection grade/supertime scale from the date the same was granted to his juniors, if necessary by creating supernumerary post on account of his juniors having already retired.
3. The appellant is also entitled to addition of the period of 4 years 4 months and 15 days of qualifying service under Rule 4.2-A of the Civil Services Rules, Volume II. Since the appellant had to run from pillar to the post, we are of the view that though the appellant is entitled to compensatory costs, however, in place of compensatory costs, we enhance the interest on the arrears from 8% to 12 % per annum.
4. The High Court is directed to consider the case of the appellant regarding granting him proforma re-designation as District and Sessions Judge from the date it became due under the Rules and take a decision in this regard within three months from the date of receipt of certified 14 of 15 ::: Downloaded on - 12-08-2018 19:13:40 ::: LPA No.371 of 2010 (O&M) - 15 - copy of this judgment.
In view of the above, the pension of the appellant shall be re- calculated and refixed, which shall not be less than 50% of his last drawn pay along with emoluments and arrears shall be released to him within three months from the date of receipt of certified copy of this judgment along with simple interest @ 12% per annum. However, the remaining part of the relief is declined.
As such, the present appeal is allowed, accordingly, in the abovenoted terms.
(A.B. CHAUDHARI) (KULDIP SINGH)
JUDGE JUDGE
July 30, 2018
sarita
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