Punjab-Haryana High Court
Bank Of Baroda vs Suresh Singh Dangi on 3 February, 2012
RSA No. 1099 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 1099 of 2009
Date of Decision: February 03 , 2012
Bank of Baroda ......Appellant
Versus
Suresh Singh Dangi ..... Respondent
Coram: Hon'ble Mr. Justice Ajay Tewari
Present: Mr. Parminder Singh, Advocate
for Mr. Bhupendra Singh Chauhan, Advocate
for the appellant.
Mr. Neeraj Kumar, Advocate
for the respondent.
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Ajay Tewari, J.
This appeal has been filed by the appellant against the judgment and decrees of both the Courts below granting mandatory injunction to the effect that his period of service without pay be counted as regular service and his pension be sanctioned.
The case set up by the respondent was that he had served the bank for 18 years and 26 days and during this period he had to remain on leave without pay for a period of 4 years 3 months and 23 days. Thereafter the appellant floated a Voluntary Retirement Scheme for which the respondent opted. His option was accepted. However, his claim for pension RSA No. 1099 of 2009 2 was declined by document Annexure P-27 wherein it was specifically mentioned that since he did not have 15 years service he could not be granted pension. The respondent consequently filed the instant suit claiming that he was entitled to the grant of pension.
In the written statement a specific plea was taken that the respondent was not entitled to pension since he did not have 10 years service. Both the Courts held that in view of the written statement filed by the appellant respondent's suit had to be decreed since he admittedly had more than 10 years of service. They also directed that his period of leave without pay be counted for pension. When the appeal was admitted the following question of law was proposed:-
"Whether learned Civil Court is the court of competent jurisdiction in entertaining matters pertaining to payment of pension that are governed by "Employees Provident Fund and Miscellaneous Provisions Act?"
Learned counsel for the appellant is not in a position to deny that under the said Act only those pension schemes are applicable which have been framed by the Central Government and notified in the official gazette as per Section 6-A of the Employees Provident Fund and Miscellaneous Provisions Act. There is neither any pleading nor evidence on behalf of the appellant to show that the pension in the present case is such which is covered by this Section. Learned counsel for the appellant has today very fairly stated that the aforesaid question of law does not arise. However, he has argued that the substantial questions of law in this case are 'whether the respondent was entitled to pension in terms of Voluntary Retirement Scheme and in terms of the Pension Regulations of the appellant?' and 'whether the period of leave without pay could be counted towards RSA No. 1099 of 2009 3 pension ?' In respect of the first question he has relied upon C.Jacob v. Director of Geology reported as (2008)1 SCC 115 wherein it was held as follows:-
" 20. A government servant, whose case does not fall under any of the classes of pensions enumerated in Chapter V, is not en-titled to pension. If a government servant is not able to make out entitlement to any class of pension specified in chapter V of the pension Rules, there is no question of having recourse to the rules in the chapter dealing with regulation of amount of pension (chapter VI of TNP Rules or chapter VII of CCSP Rules) for determining the quantum of pension." and " 13. Where an employee unauthorizedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/ removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back-wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage indiscipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back-wages."
Thus, he has argued that the entitlement to pension had to be seen by the Courts below in reference to the regulations and as per the regulations the respondent is not entitled to pension and it would be a matter of public policy to deny pension out of public monies if the employee had not earned it.
RSA No. 1099 of 2009 4
In the present case there is another substantial question of law viz. whether a party to a civil suit has to be held down to its pleadings? The appellant had taken a specific plea in its written statement that the respondent was not entitled to the grant of pension since he did not have 10 years service. It is argued that actually this was a misprint and what the appellant intended to plead was that the respondent did not have 20 years service which was the requirement of the regulations. In my considered opinion there was no bar for the appellant to have amended its written statement immediately when the mistake came to its notice. In any case it was on the basis of this pleading that the trial Court decreed the suit. Even thereafter no application was moved for amendment of the written statement. Not only that, the Lower Appellate Court also specifically held that since the appellant had itself pleaded that the respondent did not have 10 years service it could not lead any evidence to show that in fact this pleading was wrong and even when the present appeal was filed no application for amendment of the written statement was made., Strangely an application for amendment of the grounds of appeal was made which was allowed. In this application also, this amendment was not claimed.
In Bachhaj Nahar v. Nilima Mandal and another reported as 2009 AIR (SC) 1103 the Hon'ble Supreme Court held as under:-
"16. The observation of the High Court that when a plaintiff sets forth the facts and makes a prayer for a particular relief in the suit, he is merely suggesting what the relief should be, and that it is for the court, as a matter of law, to decide upon the relief that should be granted, is not sound. Such an observation may be appropriate with reference to a writ proceeding. It may even be appropriate in a civil suit while proposing to grant as relief, a lesser RSA No. 1099 of 2009 5 or smaller version of what is claimed. But the said observation is misconceived if it is meant to hold that a civil court may grant any relief it deems fit, ignoring the prayer. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non- joinder of causes of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of Rs.one lakh, the court cannot grant a decree for Rs. Ten lakhs. In a suit for recovery possession of property `A', court cannot grant possession property `B'. In a suit praying for permanent injunction, court grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."
In Municipal Corporation of the City of Jabalpur v. State of M. P. and another reported as 1966 AIR (SC) 873, a Constitution Bench of the Hon'ble Supreme Court held as follows:-
"9. The question as to who a transferor is obviously a question of fact or at best a mixed question of law and fact and when a party in a writ petition does not allege any such fact, it stands to reason that he ought not to be permitted to travel beyond the facts stated, at the stage of the arguments, To confine a party to his pleadings, particularly to his allegations as regards facts is dictated not merely by the need for orderliness in these proceedings but for avoiding surprise to the other party and consequent injustice resulting therefrom. Save in exceptional cases, parties should be held strictly to their pleadings and if owing to discovery of new matter or grounds, there is need to add to or to modify the allegations RSA No. 1099 of 2009 6 either in the petition or in the counter- affidavit, the Court should insist on formal amendments being effected, for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet it with appropriate defences. This salutary rule was not adhered to in this case, and the departure from the pleadings which the appellant was permitted to adopt during the course of its arguments before the High Court has led to injustice because thereby the Counsel for the State who was apparently not prepared, to meet an argument not raised in the petition,made submissions at the spur of the moment which were not justified by the true state of affairs. In our opinion, on the allegations made in the petition by the appellant Corporation it ought not to have been permitted to put forward a case that the State Government was not the transferor of the property and the learned Judges of the High Court should have proceeded on the basis of the pleadings in the case."
Resultantly this Court is faced with a peculiar dilemma in view of the two propositions in law enumerated above as emanating from the judgment of C. Jacob's case(supra) and from the judgment in Municipal Corporation of the City of Jabalpur v. State of M.P. and another(supra) as well as in Bachhaj Nahar v. Nilima Mandal and another(supra). The first proposition is that to grant pension when it was not legitimately earned may even be against public policy, apart from its inherent illegality. The second proposition is that it is a matter of paramount public policy that a party to a suit would be held down to its pleadings. In my considered opinion in view of the decision in Municipal Corporation of the City of Jabalpur v. State of M.P. and another(supra) as well as in Bachhaj Nahar v. Nilima Mandal and another(supra) this Court would have to RSA No. 1099 of 2009 7 limit the appellant strictly to its pleadings. To do otherwise would have a far reaching and cascading effect on the basic principles of Civil Procedure which have been enunciated in the two decisions mentioned above. Every litigant would then be at liberty to ignore its own pleadings, lead evidence foreign to the pleadings and argue against the record. As noticed above in the present case no attempt was made by the appellant to amend the written statement though an application to amend the grounds of appeal in this Court was moved and even in that it was not mentioned that there was a misprint in the written statement as it has been sought to be argued today.
Resultantly it is has to be held that in terms of the pleadings of the appellant, since the respondent had more than 10 years of service he would be entitled for pension.
However, as regards the second question proposed by learned counsel for the appellant there is no warrant in law that unsanctioned leave which has been converted as leave without pay, as in the present case, could be counted towards pension. To this extent the findings of the Court below are set aside.
This appeal is disposed of in the above terms.
(AJAY TEWARI) JUDGE February 03, 2012 sunita