Punjab-Haryana High Court
(O&M;) State Of Haryana And Ors vs Bhup Singh on 19 December, 2014
Author: B.S. Walia
Bench: B.S. Walia
RSA No. 2119 of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No. 2119 of 2004. (O&M)
Date of Decision : 19.12.2014
State of Haryana and others. ...Appellants
Versus
Bhoop Singh. ...Respondent
CORAM: HON'BLE MR. JUSTICE B.S. WALIA
Present: Ms. Neena Madan, Addl. Advocate General, Haryana.
Mr. N.K. Malhotra, Advocate for the respondent.
***
B.S. Walia, J.(Oral)
The State is in regular second appeal against the judgment and decree of both the Courts below decreeing the suit of the plaintiff - respondent for a declaration that the plaintiff-respondent is entitled to get pension considering his date of appointment as 14.05.1970, 5 years service benefits as he himself applied for retirement and other service benefits i.e. leave encashment, gratuity, GPF and all other retiring benefits of services along with interest @ 18% per annum from the date of withholding of the KANCHAN 2015.01.07 16:50 I attest to the accuracy and integrity of this document Chandigarh RSA No. 2119 of 2004 -2- same till payment as also a decree for mandatory injunction directing the defendants to give all the above said benefits to the plaintiff.
Brief facts of the case relevant for adjudication of the regular second appeal are that the plaintiff-respondent joined as Tractor Driver on ad-hoc basis in the Agriculture Department on 14.05.1970. Thereafter his services were regularized on 01.08.1975, whereafter he worked as Driver with the defendant No. 4 at Govt. Seed Farm Samargopalpur, Rohtak. Vide letter No. 5517 dated 13.07.1998, the plaintiff- respondent was sent on deputation by defendant No. 4 to Haryana Land Reclamation and Development Corporation, Bhiwani. On 30.07.1998, the plaintiff-respondent submitted three months notice to defendant No. 3 through proper channel for voluntary retirement and ultimately, on the expiry of the three months notice, the plaintiff-respondent was relieved from duty on 31.10.1998. During the notice period of three months, the plaintiff respondent went to the office of defendant No. 4 with request for preparation of service record and settlement of pension and other service benefits but to no avail. On failure of the Department to release his retiral dues, the plaintiff-respondent filed a Civil Suit on 24.04.1999 claiming retiral benefits along with interest etc. On the basis of pleadings of the parties, the Subordinate Court framed the following issues :-
i) Whether the plaintiff is entitled to service benefits including pension from the date of appointment i.e. 14.05.1970? OPP.
ii) Whether the plaintiff is entitled to interest on delayed payment?
OPP.
iii) Whether the delay in making the payment is responsibility of defendants? OPD.
KANCHAN2015.01.07 16:50 I attest to the accuracy and integrity of this document Chandigarh RSA No. 2119 of 2004 -3-
iv) Whether the suit is pre-mature? OPD.
v) Whether the suit is not maintainable and no cause of action to file
the present suit? OPD.
vi) Whether the suit is bad for non-joinder and mis-joinder? OPD.
vii) Relief.
After taking into account the pleadings as well as the evidence lead by the parties, the Subordinate Court decreed the suit by returning a finding in favour of the plaintiff-respondent on all the issues. However, with regard to the contention of the appellant-defendants that the plaintiff-respondent had submitted his resignation on 31.07.1975, the Subordinate Court took into account the contention of the plaintiff that the said allegations were totally false and no record in that regard had been produced by the appellant-defendants, so much so, DW1 Tilak Raj during his cross- examination admitted that there was no application of the plaintiff qua his resignation in the record.
It needs mention that on being relieved from service on 31.10.1998, the plaintiff-respondent made prayer for settlement of pension and other service benefits and thereafter vide representation dated 05.11.1980 Ex.P5, the plaintiff-respondent again approached the defendants for settling his pensionary amount, gratuity, leave encashment, GPF amounts and other service benefits but to no avail.
The Subordinate Court while taking into account the plea of the department that there was no evidence in the file that the plaintiff submitted his pension papers on 18.05.1999, concluded that from the evidence adduced by the plaintiff, it was proved that from the date of application vide which the plaintiff sought voluntary retirement, that the plaintiff was approaching the defendant for release of pensionary KANCHAN 2015.01.07 16:50 I attest to the accuracy and integrity of this document Chandigarh RSA No. 2119 of 2004 -4- and other service benefits, therefore there was no force in the plea of the defendants that there was no delay on their part in making the payment to the plaintiff.
In the light of the above, the Subordinate Court decided all the issues in favour of the plaintiff and against the defendants and in view thereof held that the plaintiff was entitled to get pensionary and other service benefits from the date of appointment i.e. 14.05.1970 in addition to five years service benefits along with interest @18% per annum from the due date till the actual date of payment with costs etc. and defendants were directed to make said payment to the plaintiff.
The Lower Appellate Court while taking into account in paragraph No. 10 of its judgment that it had nowhere been proved on the file that the plaintiff ever resigned from his post, held that in the absence of any document it could not be presumed that the plaintiff respondent had resigned at any time. The Lower Appellate Court also took into account the categorical statement of PW2 that the plaintiff respondent joined service on 14.05.1970 and that there was no break in service upto 01.01.1973, that DW1 had stated in his examination-in-chief that the plaintiff was appointed on adhoc basis on 14.05.1970 and later on, his regular appointment was made, that there was break in his service from 12.11.1970 to 19.11.1970 and 8.11.1972 to 31.12.1972 and as per the service book, the plaintiff had resigned from service on 31.07.1975. However, in cross-examination, DW1 specifically stated that there was no order about the resignation and failed to tell how the entry was incorporated in the service book, rather stated that the officials of HLRDC might have made the entry and he further admitted that as per service book, there was no break in service from 01.01.1973 till retirement. However, he did not produce any document on the basis of which, he stated about the break in service. The Lower Appellate Court held that in the absence of any document, it could not be presumed that there was any break or that he resigned therefrom and that in the circumstances, the Subordinate Court had rightly held that there was no break in service and that there was continuity. KANCHAN 2015.01.07 16:50 I attest to the accuracy and integrity of this document Chandigarh RSA No. 2119 of 2004 -5-
However, with regard to the quantum of interest, the Lower Appellate Court after taking into account the prevailing rate of interest @ 9% per annum being awarded in Motor Accident Claims Tribunal cases, reduced the rate of interest from 18% per annum as awarded by the Subordinate Court to 9% per annum.
I have learned counsel for the parties. The following substantial questions of law have been framed by the appellants :
i) Whether the action of both the Courts below in granting interest to the plaintiff-respondent is illegal, unjust?
ii) Whether the release of post retiral benefits to the plaintiff-
respondent in the month of June/July, 1999 is really based on extra ordinary delay and also for grant of interest especially when the plaintiff-respondent sought pre-mature retirement and himself submitted documents in the month of April / May, 1999?
iii) Whether the action of the learned Courts below in not considering the entries in service book of the plaintiff-respondent trustworthiness especially when the service book of an employee is a magna carta of his whole career is unsustainable?
The stand of the appellant in the grounds of appeal is that the plaintiff- respondent submitted three months notice for pre-mature retirement on 30.07.1998 and was relieved on 31.10.1998 on expiry of the three months notice. Adequate time was required for completing various procedural formalities in different offices as also to get 'No Objection Certificate' etc. from various places where the plaintiff- respondent remained posted throughout his service carrier for release of the post- retiral benefits. Thus, on completing various formalities, all the amounts due to the KANCHAN 2015.01.07 16:50 I attest to the accuracy and integrity of this document Chandigarh RSA No. 2119 of 2004 -6- plaintiff-respondent on account of retiral benefits were released in the month of June / July, 1999, as per the details mentioned hereunder :-
i) GIS amount of Rs. 6056/- was paid on 03.06.1999 ;
ii) GPF amount of Rs. 1,64,501/- was paid on 25.06.1999 ; and
iii) Leave encashment to the tune of Rs. 75,640/- was paid on 16.07.1999.
On the basis of the details, as referred to above, it was contended that no extra- ordinary/inordinate delay occurred in the release of retiral benefits especially when the plaintiff-respondent sought pre-mature retirement and was relieved on 31.10.1998.
In short, the stand of the Department is that since the plaintiff-respondent had sought pre-mature retirement and was relieved on 31.10.1998 after expiry of the three months notice period, reasonable time was taken for completing procedural formalities and in view thereof, the plaintiff was not entitled to any interest. It has also been mentioned in the grounds of appeal that in the ordinary course of nature, the department is supposed to start the process of releasing post-retiral benefits at least a year prior to the actual date of retirement and since in the instant case, the plaintiff had sought pre-mature retirement, therefore, at least 6-7 months time was necessary for completing various procedural formalities for release of the post-retiral benefits which were released in the month of June, July, 1999 itself. In the light of the aforementioned stand, it was contended that it was not a case of extra-ordinary delay which entitled grant of interest to the plaintiff-respondent and, in the alternative, the interest awarded could not have been more than 6 % per annum.
It has also been pleaded in the grounds of appeal that directions have been given by both the Courts below to calculate the period for pensionary benefits w.e.f. 14.05.1970, the date of initial appointment, till 31.10.1998 but the said KANCHAN 2015.01.07 16:50 I attest to the accuracy and integrity of this document Chandigarh RSA No. 2119 of 2004 -7- directions were liable to be set-aside since it had not been pleaded by the plaintiff- respondent in the plaint that his service period be counted from 14.05.1970 instead of the date of regularization, i.e. 01.08.1975 ; that the service book of the plaintiff- respondent had been produced by the appellant-department and that as per entries in the service book, the actual period for calculating the pensionary benefits was from 01.08.1975 to 31.10.1998, as the services of the petitioner were regularized on 01.08.1975 and the directions of the Subordinate Court to count the period from 14.05.1970 could not be given because after joining on 14.05.1970 on ad-hoc basis, the plaintiff-respondent resigned from the post and the period for which the plaintiff- respondent himself resigned, the same could not be counted for pensionary benefits and the fact of resignation had not been disclosed by the plaintiff-respondent in his pleadings. It was contended that in the light of the above, the directions of both the Courts below for calculating the period for grant of pensionary benefits from 14.05.1970 was totally against well settled rules and the action of the Courts below by not considering the entries in the service book, produced by the appellant-department to be trustworthy, was totally illegal, unjustified and based on surmises and conjectures. Besides, the award of interest @ 9% per annum was unjustified as the same in any case should not have been more than 6 % per annum.
In the context of letter dated 02.11.1998, learned counsel for the appellant very fairly stated at the bar that it was a matter of record that the respondent-plaintiff had been sent on deputation in HLRDC and was never absorbed there.
Learned counsel for the plaintiff-respondent submitted that the plaintiff respondent had claimed pensionary benefits from his date of appointment, i.e. 14.05.1970, plus five years' service benefits admissible to him in terms of Rule 5.32-B (3) of the Punjab Civil Service Rules, Volume II, Part I as applicable to Haryana besides interest on the delayed payment. Rule 5.32-B (3) of the Punjab Civil KANCHAN 2015.01.07 16:50 I attest to the accuracy and integrity of this document Chandigarh RSA No. 2119 of 2004 -8- Service Rules, Volume II, Part I (as applicable to Haryana) relied upon by learned counsel for the respondent-plaintiff is reproduced hereunder :-
Rule 5.32-B (3) of the Punjab Civil Service Rules, Volume II, Part I as applicable to Haryana "[(3) The qualifying service as on the date of intended retirement of the Government employee seeking retirement under this rule or under clause (e) of rule 3.26 of Pb. C.S.R. Vol. I, Part 1 with or without permission shall be increased by the period not exceeding 5 years subject to the condition that the total qualifying service rendered by the Government employee does not in any case exceed 33 years and it does not take him beyond the date of superannuation. The weightage of five years shall not be admissible in cases of those Government employees who are prematurely retired by the Government in pubic interest under the relevant rules."
The Subordinate Court in paragraph No. 14 of its judgment took into account the fact that defendant Nos. 1 to 4 in their written statement had neither admitted nor categorically denied that the plaintiff was entitled to get pensionary benefits from the date of appointment i.e. 14.05.1970 as also five years service benefits. The Subordinate Court in paragraph No. 15 of its judgment noted that DW1 Tilak Raj had testified that there was break in the service of the plaintiff from 08.11.1972 to 31.12.1972 and on 31.07.1975, the plaintiff had submitted his resignation and further that on 01.08.1975, the services of the plaintiff were regularized. However, the Subordinate Court recorded that no such plea was taken by defendant Nos. 1 to 4 in their written statement and the statement of DW1 qua break in service from KANCHAN 2015.01.07 16:50 I attest to the accuracy and integrity of this document Chandigarh RSA No. 2119 of 2004 -9- 08.11.1972 to 31.12.1972 and alleged resignation on 31.07.1975 was beyond pleadings and, thus, did not deserve to be taken into consideration.
In the circumstances, learned counsel for the appellant stated that she confined the claim in appeal to the reduction of interest awarded as also clarification qua counting of five years service in the light of restriction contained in Rule 5.32-B(3) of the Punjab Civil Services Rules, Volume II, Part I, as applicable to Haryana, so that the total period to be counted would be such that the total qualifying service rendered by the plaintiff-respondent does not in any case exceed 33 years and does not take him beyond the date of superannuation.
I find merit in the two fold submission of learned Counsel for the appellant i.e. for reduction of rate of interest from 9 % per annum to 6 % per annum in terms of Section 34 of the Code of Civil Procedure as also clarification qua counting of five years service in the light of Rule 5.32-B(3) of the Punjab Civil Services Rules, Volume II, Part I, as applicable to Haryana, so that the total period to be counted would be such that the total qualifying service rendered by the plaintiff-respondent does not in any case exceed 33 years and does not take him beyond the date of superannuation. Section 34 (1) of the Code of Civil Procedure stipulates that where and in so far as a decree is for the payment of money, the Court may award interest at such rate not exceeding six per cent per annum, as the court deems reasonable on the principal sum, from the date of the decree to the date of payment. Accordingly, in terms of Section 34, CPC, interest for the period from the date of decree till date of payment is reduced from 9% per annum to 6% per annum. Besides, it is clarified that counting of five years service in the light of restriction contained in Rule 5.32-B (3) of the Punjab Civil Services Rules, Volume II, Part I, as applicable to Haryana, would be done by ensuring that the total period to be counted towards the total KANCHAN 2015.01.07 16:50 I attest to the accuracy and integrity of this document Chandigarh RSA No. 2119 of 2004 -10- qualifying service rendered by the plaintiff-respondent does not in any case exceed 33 years and does not take him beyond the date of superannuation.
Accordingly, substantial question Nos. 1 and 2 of law framed by the appellant are answered in favour of the appellant to the extent mentioned above. The third question of law having been given up in terms of confining of relief claimed needs no answer.
Thus, the appeal is partly allowed to the extent of modification of the judgments and decrees of the Courts below qua the rate of interest from the date of decree till date of payment from 9 % p.a. to 6 % p.a., while the service in terms of Rule 5.32-B (3) of the Punjab Civil Service Rules, Volume II, Part I, as applicable to Haryana, would be counted by ensuring that the total period to be counted towards the total qualifying service rendered by the plaintiff-respondent does not in any case exceed 33 years and does not take him beyond the date of superannuation. No other point has been argued or pressed.
December 19, 2014. (B.S. WALIA)
kanchan JUDGE
KANCHAN
2015.01.07 16:50
I attest to the accuracy and
integrity of this document
Chandigarh