Punjab-Haryana High Court
Jagat Singh (Deceased) Though His Legal ... vs Punjab State Electricity Board And ... on 29 November, 2012
CWP No.6198 of 1994 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.6198 of 1994
Date of decision: 29.11.2012
Jagat Singh (deceased) though his Legal Representatives
........ Petitioner
Versus
Punjab State Electricity Board and others
........ Respondents
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the 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?
PRESENT: Mr. Amandeep Saini, Advocate for the petitioner.
Mr. KG Chaudhary, Advocate for the respondents.
R.P. NAGRATH, J.
1. Jagat Singh, petitioner (since deceased) joined the Punjab State Electricity Board-respondent (now Punjab State Power Corporation Limited) on 12.4.1963, as a lineman. While repairing an electric line by climbing on a electric pole on 13.12.1988, he fell down and received multiple injuries. There is no dispute that the petitioner remained admitted in PGI and became 100% physically disabled. The disability arose in the course of his service with the respondent. During pendency of the instant writ petition, Jagat Singh, died and his legal representatives CWP No.6198 of 1994 -2- were brought on record.
2. It is stated that the petitioner was admitted in the PGI Chandigarh for his treatment and discharged on 8.5.1990. A certificate of 80% disability was issued by the PGI. Unfortunately signatures of the petitioner were not attested on the certificate. The petitioner who contacted the concerned Department of PGI was told that record of his treatment was not traceable. Ultimately, Civil Surgeon, Ropar, issued him 100% disability certificate on 18.2.1991. The respondent invalidated him from service under Rule 5.18 of the Civil Service Rules Volume-II, vide order dated 6.5.1992 (Annexure P-1) retrospectively w.e.f. 18.2.1991.
3. The petitioner was thereafter informed vide letter dated 16.2.1993 (Annexure P-2) that the excess payment of compensation has been made to him under the Workmen Compensation Act, 1923 (for short "the Act of 1923"), therefore, vide letter dated 13.8.1993 (Annexure P-3) total deduction of ` 64,337.05 P was made. The petitioner has thus prayed for quashing these communications Annexures P-2 and P-3 and also challenged the legality of action in not counting 1 year and 2 months of service for pensionary benefits by declaring the aforesaid period as unqualified service. Such service was liable to be counted under Regulation 8.57 (6) of the Punjab State Electricity Board, Main Services Regulations, 1972, Volume-I Part-I (for brevity "the Regulations of 1972"). The respondents have wrongly treated extraordinary leave without sanctioning half pay leave of 240 days available to his leave account under Regulation 8.54 (c) of the Regulations of 1972. The CWP No.6198 of 1994 -3- challenge in this petition was also to the wrong calculation of compensation under the Act of 1923 stating that less amount of compensation has been paid.
4. In reply, the respondents have not disputed that on 13.12.1988, the petitioner while working on the electrical pole had fallen and suffered injuries and remained admitted in the hospital up to 5.1.1989. Initially he submitted a certificate of 80% disability. This certificate was not accepted as his signatures thereon were not attested by the issuing authority. He submitted another certificate dated 18.2.1991 issued by Civil Surgeon, Rupnagar, declaring 100% permanent physical impairment on 15.3.1991. Upon this certificate, the petitioner was retired w.e.f. 18.2.1991 vide order dated 6.5.1992 (Annexure P-1).
5. It is stated that the period from 13.12.1988 to 5.1.1989 for which the petitioner remained admitted in the hospital was treated as period spent on duty vide order dated 570 dated 3.11.1992, passed by the Executive Engineer, DS (Division). The period from 6.1.1989 to 18.1.1991 as leave of the kind due, out of which from 6.1.1989 to 18.12.1989 (347 days) was with pay. The period from 19.12.1989 18.2.19991 was treated as extraordinary leave without pay under Rules 8.69 and 8.71 of the Civil Service Rules sanctioned vide order No. 571 dated 3.11.1992 and from 6.1.1992 to 18.2.1992 (44 days) regularized as special disability leave under Rule 8.71 of the Rules. The period of the above leave was not considered for pensionary benefits. The benefit of service has been given for the period from 12.4.1963 to 5.1.1991, for which he actually rendered service.
CWP No.6198 of 1994 -4-
6. It is further the version of respondents that the petitioner was paid compensation to the tune of ` 81,535/- under the Act of 1923. However, the amount of ` 11,000/- was deducted on account of disability leave salary out of the total recoverable amount of ` 75,337/-. The remaining amount of ` 64,337/- was already recovered from his pension and gratuity with his consent. Consent letter is Annexure R-1.
7. The petitioner also filed rejoinder. It is stated that the deduction of salary is unjust and illegal as he was entitled to more than 30 days leave per year for total completed 31 years of service. The period of one year and 2 months has been deducted for calculating his eligible service for pensionary benefits. It is also claimed that the petitioner was entitled to more than ` 2 lacs as compensation under the Act of 1923. No deduction could be made under Rule 8.57 (9) of the Rules towards special disability leave. The details of deductions to the tune of ` 64,337/-have also not been given.
8. The counsel for the petitioner and the respondents have been heard.
9. It was urged that the petitioner was entitled to ` 82,500/- as compensation under the Act of 1923 but the respondents have wrongly deducted an amount of ` 64,337/- describing the same as excess payment under that head.
10. To resolve the controversy, the Executive Engineer of the respondent was directed to file calculation sheet with regard to the payments made to the petitioner. This statement shows that an amount of ` 81,535/-was paid to the petitioner towards compensation under the Act CWP No.6198 of 1994 -5- 1923, because of 100% disability. The counsel appearing for the petitioner does not dispute that the said calculation has been correctly made as per the Schedule attached to the Act of 1923 in relation to the age of petitioner and the amount of salary which he was drawing. As per the calculation detailed in para No. 6 of the petition, the amount should be 163.07x500 which exactly comes to ` 81,535/- as also determined by the respondents. Faced with the above situation, the petitioner's counsel was unable to press this issue. However, the petitioner was surely aggrieved by the communication Annexure P-2 which speaks of making excess payment of compensation to the petitioner thus causing the whole confusion.
11. The foremost contention of counsel for the petitioner is that the action of the respondents, in passing the order of discharge from service on account of disability, with retrospective effect is patently illegal. I am of the considered view that the order of termination in the normal course comes into effect from the date when it is passed and if the Department keeps the matter pending for more than over a year after 100% disability certificate dated 18.2.1991 was submitted the termination cannot relate back to the said date. This is the established principle of service law. The termination order dated 6.5.1992 (Annexure P-1) passed by respondents takes retrospective effect from 18.2.1991. The respondents' counsel has not referred to any Rule/Regulation or authority to controvert the above stand.
12. In Nirmal Rani Vs. Union of India and others, 2008 (4) SCT 689, a Division Bench of this Court held that termination of service CWP No.6198 of 1994 -6- of the employee with retrospective effect was wholly illegal, unwarranted and unjustified. The matter in that case related to the protection under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and termination of the employee vide order dated 11.6.2002 with retrospective effect from 13.8.1994 which was after coming into force of the Act of 1995, was held to be of no consequence.
13. The matter can be looked from another angle. The contents of order dated 6.5.1992 (Annexure P-1) would show that the order invalidating the petitioner from service was passed under Rule 5.18 of the Civil Service Rules, Volume-2 w.e.f. 18.2.1991, apparently indicating that the Punjab Civil Service Rules, have been made applicable. The said Rule reads as under:
"5.18 A Government employee who has submitted a medical certificate of incapacity for further service shall, if he is on duty, be invalided from service, from the date of relief of his duties which should be arranged without delay on receipt of medical certificate or, if he is granted leave under rule 8.18 of Punjab Civil Service Rules, Volume-1, Part-I, on the expiry of such leave. If he is on leave at the time of submission of the medical certificate, he shall be invalided from service on the expiry of that leave or extension of leave, if any, granted to him under the Rule 8.18 of Punjab Civil Service Rules, Volume-1, CWP No.6198 of 1994 -7- Part-I".
14. Regulation 8.18 of the Regulations of 1972, is analogus to Rule 8.18 of the Punjab Civil Service Rules, Volume-1, Part-I, which reads as under:
"8.18 When an authorized Medical Officer has reported that there is no reasonable prospect that a particular Board employee will ever be fit to return to duty, leave should not necessarily be refused to such a Board employee. It may be granted, if due, by a competent authority (See Sr. No. 23 Chapter XV) on the following conditions:-
(a) xxx xxx xxx xxx
(b) If the medical authority declares the Board
employee to be completely and permanently
incapacitated for further service, he should, except as provided in clause (c) below, be invalided from the service, either on the expiration of the leave already granted to him if he is on leave when examined by the Authorized Medical Officer or, if he is not on leave, from the date of Medical Officer's report.
(c) A Board employee declared by the Authorized
Medical Officer to be completely and
permanently incapacitated may, in special cases, be granted leave or an extension of leave, not exceeding 180 days as debited against the leave CWP No.6198 of 1994 -8- account if such leave be due to him. Special circumstances justifying such treatment may be held to exist when the Board employee's breakdown in health has been caused in and by Board service, or when he has taken a comparatively small amount of leave during his service or will complete at an early date an additional year's service for pension."
15. Rule 5.18 of the Civil Service Rules, Volume-2, therefore, makes it mandatory for passing of such order immediately without delay on receipt of medical certificate. In this case, there is absolutely no reason coming forth why the Department delayed in passing the order invalidating the petitioner from service for about 1 year and 3 months, despite this mandate.
16. Rule 4.7 of the Punjab Civil Service Rules, Volume 2, says the time passed by a Government employee on leave of all kinds except extraordinary leave, other than that extraordinary leave counted towards increment under Rule 4.9 (b) of Volume 1, shall count as service qualifying for pension.
17. In Rule 4.9, Volume 1 the following provisions prescribe the condition on which service counts for increments in a time scale:-
"(a) xxx xxx xxx xxx
(b) (i) xxx xxx xxx xxx
(ii) All leave except extraordinary leave taken otherwise than on medical certificate and the CWP No.6198 of 1994 -9- period of deputation out of India shall count for increment in the time-scale applicable to a post in which a Government employee was officiating at the time he proceeded on leave deputation out of India and would have continued to officiate but for his proceeding on leave or deputation out of India:
Provided that the competent authority may in any case in which it is satisfied that the extraordinary leave was taken for any cause beyond the Government employee's control or for prosecuting higher scientific and technical studies, direct that extraordinary leave shall be counted for increments under clause (i) or (ii)". Therefore, the period of extraordinary leave on counting the length of service of the petitioner up to 6.5.1992, when the order of invalidating him from service was passed is to be counted not only for the purposes of increment but also as service qualifying for pension.
18. The petitioner along with his replication filed the statement of calculation of pension supplied to him by respondent-Board which is Annexure P-5. Under sub-rule (5) Rule 4.2 of the Punjab Service Rule, Volume 2 a Government employee, who is blind, deaf, dumb or otherwise orthopaedically handicapped during the service and is retired from service as a result thereof shall also be eligible to add to his service qualifying for superannuation pension, a period of five years, which the CWP No.6198 of 1994 -10- respondent-Board has counted as per the computation for calculation of the length of service for pensionary benefits Annexure P-5. In this statement, the period of 1 year and 2 months had been determined as unqualified service. How the period of 1 year and 2 months reduced as un-qualified service has not been explained but it is obviously on account of the extraordinary leave which was sanctioned to the petitioner and as already observed that period has to be counted towards the qualifying service apart from the period which is to be counted from 18.2.1991 up to 6.5.1992. In this way it becomes quite clear that total length of qualified service of the petitioner for pension would be more than 33 years entitling him to full pension but the ultimate calculation has to be made by the Department.
19. Rule 4.22 of the Punjab Civil Services Rules (Volume-2) says that the authority which sanctions the pension may commute retrospectively periods of absence without leave, into leave without allowances or extraordinary leave.
20. Regulation 8.57 of the Regulations of 1972, deals with the special disability leave of the employees of the respondent-Board. The extent special disability leave is 24 months as per Regulation 8.57 (3). Clause (6) of the said Regulation is analogous to Rule 4.7 of the Civil Services Rules. It says that such leave shall be counted as duty in calculating the service for pension but half of the amount of such leave on full pay taken under clause 8 below shall be counted as earned leave taken. Under sub-clause (7) of Regulation 8.57 of the Regulations of 1972, says that leave salary during such leave including a period of such CWP No.6198 of 1994 -11- leave granted under clause (5) above shall be equal to full pay for the first 120 days in case of Board employee of Class I, II, III or IV. Under clause (8) for the remaining period of any such leave to half pay or at the Board employee's option for a period not exceeding the period of earned leave otherwise admissible to him under Regulation 8.52 or 8.53 to full pay. But the respondent-Board has not taken notice of the above important provisions.
21. The respondent-Board has proceeded absolutely in an illegal manner by recovering ` 75,337/- towards the amount of salary paid during the period, the deceased-petitioner remained outdoor patient w.e.f. 6.1.1989 to 18.1.1991 on the ground that this deduction is under Regulation 8.57 (9) (i) of the Regulations of 1972.
22. Sub-clause (9) (i) of Regulation 8.57 of the Regulations of 1972, says that in the case of a person to whom the Workmen's Compensation Act, 1923, applies, the amount of leave salary payable under this regulation shall be reduced by the amount of compensation payable under Section 4 (i) (d) of the said Act. In this case, the respondent-Board sanctioned the period of 44 days only from 6.1.1992 to 18.2.1992 as special disability leave, so out of the amount of compensation leave salary pertaining to the said period could only be reduced.
23. It may be noticed that an employee of the board is entitled to the grant of earned leave in the manner given in Regulation 8.52 of the Regulations of 1972, half pay leave, commuted leave and leave not due under Regulation 8.54 of the Regulations of 1972. Commuted leave may CWP No.6198 of 1994 -12- extend to a maximum period of 240 days. Then there is special disability leave which can extend up to 24 months under Regulation 8.57 of the Regulations of 1972. The respondent-Board in the written statement has taken a plea that leave was sanctioned vide order No. 571 dated 3.12.1992 but copy of the order was not attached. The details of the leave account of the petitioner, were also not supplied disclosing as to what amount of earned leave, commuted leave or disability leave was due towards his leave account and whether the full credit of 240 days special disability leave has been granted or not for which necessary directions will have to be issued. There is another kind of leave in such like cases under the head 'Hospital Leave' for which the provisions are made from Regulations 8.62 to 8.65 of the Regulations of 1972.
24. The next contention of petitioner's counsel is based on the principle laid down in Budh Ram and others Vs. State of Haryana and others, 2009 (3) SCT 333, that if the payment of salary is made to an employee for which there is no misrepresentation, the recovery of excess payment should not be made from him. The principle of law, however, has been set at rest by Hon'ble Supreme Court in Chandi Parsad Uniyal and others Vs. State of Uttrakhand and others, JT 2012 (7) SC 460, that any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right. In such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. It was, therefore, held that except a few instances pointed in Col. B.J. Akkara (retd.) Vs. Government of India and others, 2006 (11) SCC 709 CWP No.6198 of 1994 -13- and Syed Abdul Qadir and others Vs. State of Bihar and others, 2009 (3) SCC 475 the excess payment due to wrong fixation of pay can always be recovered.
25. In Col. B.J. Akkara (retd.) case (supra) it was held as follows:
"Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." CWP No.6198 of 1994 -14-
26. In Syed Abdul Qadir and others case (supra) it was held as under:
"Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. (emphasis added)"CWP No.6198 of 1994 -15-
27. The above principle would squarely apply to the facts of present case. It has been quite unfair for the respondent to have deducted the amount of salary already disbursed to the petitioner whose condition was pathetic and that too from the amount of compensation awarded under the Act of 1923 for which he was in the dire need and undergoing treatment for the injuries suffered in the performance of his official duties. The respondents could surely not have done it, in the event of compensation been paid immediately within one month of the injury as per requirement of law. In fact the respondent-Board treated the petitioner on duty for whole of the said period for which the salary was being paid regularly. The petitioner, therefore, is entitled to the refund of amount of ` 75,337/- deducted from his pensionary benefits.
28. The other contention is that the amount of compensation under the Act of 1923 was paid after a gap of more than three years of the incident in which he suffered total disability. The incident took place on 13.12.1988 and the payments were made to the -petitioner vide cheques dated 29.3.1992 and 1.6.1992, respectively, as per the details mentioned in the calculation sheet filed by the respondent during the course of arguments. The prayer, therefore, is made for award of interest over the delayed payment as per law.
29. The Hon'ble Supreme Court held in Pratap Narain Singh Deo Vs. Sirinivas Sabata and another (1976) 1 Supreme Court Cases 289, that the employer became liable to pay the compensation as soon as personal injury was caused to the workman in the incident which admittedly arose out of and in the course of employment. There was no CWP No.6198 of 1994 -16- suspension of the compensation pending settlement. It was further held that it was the duty of the employer, under Section 4 A(1) of the Act, to pay the compensation at the rate provided by the said section as soon as the personal injury was caused to the employee. The employer, therefore, cannot say that the amount of compensation would become due when the same is settled by the Compensation Commissioner. It is otherwise not disputed that the amount of compensation was paid under the orders of Claims Commissioner under the Act of 1923 as stated by the petitioner in his legal notice Annexure P-4, served upon the respondents before filing of this petition.
30. The law casts a duty upon the employer to inform the Commissioner about any such incident and deposit the amount which was applicable to the case. This Court in New India Assurance Company Ltd. Vs. Manphool Singh and others, 2008 (1) PLR 706, held that the amount of compensation becomes due on expiry of one month from the date of injuries sustained by the workman.
31. With regard to liability to pay interest on the delayed payment it requires notice that the amendment with regard to payment of interest was made in sub-clause 3 of Section 4A of the Act to increase the liability of payment of interest at the rate of 12% per annum in the year 1995 and before that the interest was @ 6% per annum as also observed in National Insurance Company Vs. Dayal Kaur and others, (1997) 116 PLR 313. Therefore, the deceased-petitioner would be entitled to the interest at the rate of 6% per annum on the delayed payment of the amount of compensation w.e.f. 14.1.1989 i.e. on expiry of one month CWP No.6198 of 1994 -17- period from 13.12.1988 the date of occurrence up to payment of the amount of compensation disbursed vide cheques dated 29.3.1992 and 1.6.1992.
32. The instant writ petition is, therefore allowed holding as under:-
1. The orders Annexure P-1 and P-2 are quashed.
The petitioner shall be deemed to have continued in service till 6.5.1992 when the order invalidating him from service was passed.
2. (i) The respondents will pay the petitioner interest @ 6% per annum on the amount of compensation of ` 81,535/- to commence one month after the date of accident i.e. 14.1.1989 till the same was paid by way of cheques.
AND
(ii) Refund the amount of ` 75,337/-
wrongfully deducted out of the outstanding dues at the time of preparing the pension case.
3 (i) The respondents will pass fresh orders of sanction of the leave of the kind due taking into account his entire length of service upto the deemed date of retirement which is 6.5.1992 as per the observations made in this judgment and to communicate the LRs of the deceased-
petitioner the details of leave due to the CWP No.6198 of 1994 -18- deceased-petitioner under each head. In the said exercise the amount of ` 75,337/- towards compensation under the Act of 1923, will not be recovered.
AND
(ii) To make fresh calculations of the
pensionary benefits of the deceased-petitioner by taking his period of termination from service as on 6.5.1992.
33. Further directions are issued to the respondents to complete the entire exercise on direction No. 3 above within a period of two months of the receipt of certified copy of this order and disburse the arrears including arrears of pensionary benefits to the Legal Representatives of the deceased-petitioner within another period of one month along with interest at the rate of 8% per annum. The payment as per direction No. 2 be made within a period of three months failing which the respondents would be liable to pay interest @ 8% per annum on this amount from the date of this judgment.
34. Allowed in the above terms.
November 29, 2012 ( R.P. NAGRATH ) rishu JUDGE