Punjab-Haryana High Court
Sohan Singh vs Punjab State Etc on 1 December, 2014
Author: Deepak Sibal
Bench: Satish Kumar Mittal, Deepak Sibal
CWP No.15666 of 1998 -1-
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
CWP No.15666 of 1998
Date of decision:1.12.2014
Sohan Singh through LRs
...Petitioner
Versus
State of Punjab and others ... Respondents
CORAM : HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE DEEPAK SIBAL
Present: Mr. V.K. Sharma, Advocate for the petitioners.
Mr. Gaurav Garg Dhuriwala, D.A.G. Punjab.
Mr. Arun Nehra, Advocate for
respondents No.2 and 3.
1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest.
DEEPAK SIBAL, J.
The primary grievance, which has made the petitioner knock the doors of this Court, is the rejection of his claim for pension by the respondent-Bhakra Beas Management Board (hereinafter referred to as "the Board"), on the ground that the petitioner did not have the prescribed number of years of qualifying service i.e. 10 years.
The Bhakra Dam which truly represents the symbol of India's Progress and was rightly described as "The Temple of Resurgent India" by Pt. Jawahar Lal Nehru, the First Prime Minister of independent India is one of the biggest multi purpose projects in the world. The project was and is committed for the nations development through eco-friendly generation of electric power from water, better known as hydro electricity.
A little role was played by the petitioner in setting up the above dam and then in linking the rivers Beas and Satluj for optimum water RAJEEV THAKRAL 2014.12.03 14:39 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.15666 of 1998 -2- utilization for generation of electricity in the Bhakra Dam. Right from the dam's institution, the petitioner worked there as a Rigger from 15.5.1955 to 20.2.1965. Thereafter from 17.2.1965 to 30.4.1984, he worked as a fitter in the Beas Satluj Link Project under the Beas Construction Board and then from 12.3.1985 to 30.6.1989, he worked as Fitter with the respondent-Board in the Bhakra Power House Division. It is while working as a Fitter in the respondent-Board that the petitioner superannuated and retired on attaining the age of 58 years w.e.f. 31.7.1992. All the above service so rendered by the petitioner was in work-charged capacity. The work of the petitioner had been always appreciated and this is clear from two of such appreciation letters (Annexures P-3 and P-4) placed on the record by the petitioner which read as under:
" Office:355
Phones:Resi:356
Grams:CHIEF GEN
Telex No.0395-396-BBMB-IN
Er. KKK. Batta, FIE,
Chief Engineer (Generation) D.O.No.6868
BHAKRA BEAS MANAGEMENT BOARD
(POWER WING)
NANGAL TOWNSHIP-140124
Dated: May 12, 1998
My dear Sohan Singh,
I write this to place on record my deep appreciation of your untiring efforts and dedication towards the expeditious and successful execution of the work of Capital Maintenance of Bhakra Unit No.6 & 7 carried out during 4.12.1985 to 4.2.1986 and 15.12.1984 to 28.4.1985 respectively.
Please accept my congratulations and keep up the good work.
Copy of this letter is being sent to your Parent Board for placing the same in your qualification Report file. RAJEEV THAKRAL 2014.12.03 14:39 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.15666 of 1998 -3-
With best wishes, Yours sincerely, (K.K. Batta) Shri Sohan Singh, Fitter W/C, Bhakra PP-II D.O. No.4338/BBMB Chief Engineer (Generation) Er. K.K. Batta, FIE BBMB (PW), Nangal Township Chief Engineer. Dated 8.3.1989 My dear Sohan Singh, I write this to place on record my deep appreciation of your untiring efforts and dedication towards the expeditious and successful execution of the work of Capital Maintenance of Bhakra Unit No.9 and 10 carried out during 29.1.1988 to 24.5.1988 and 1.6.1988 to 9.8.1988 respectively.
Please accept my congratulations and keep up the good work.
Copy of this letter is being sent to your Parent Board for placing the same in your Qualification Report File.
With Best wishes.
Yours Sincerely, (K.K. Batta) Shri Sohan Singh, Fitter/Rigger, C/o Xen/Mtc., Bhakra PP-II, BHAKRA"
The petitioner has specifically pleaded that his entire service was unblemished and this fact has not been disputed by the respondent.
In the light of the above, the petitioner while relying upon a Full Bench decision of this Court in Kesar Chand v. State of Punjab and others; 1988 (5) SLR 27, through a representation claimed pension from the respondent-Board requesting them to count all of his above referred work RAJEEV THAKRAL 2014.12.03 14:39 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.15666 of 1998 -4- charge service as qualifying service for the grant of pension. This request made by the appellant was denied by the Board holding that he did not have the required 10 years of service with the Board and therefore, was not entitled for pension. Aggrieved by such action of the Board, the petitioner has approached this Court through the present writ petition.
Before proceeding further it would be apt to detail the service rendered by the petitioner. The same is extracted below for ready reference:
15.5.1955 to 10.02.1965 Bhakra Dam Under the Punjab Government 17.2.1965 to 30.4.1984 BSL Project Under Beas Construction Board 12.3.1985 to 30.6.1989 Bhakra Power House Divn. Under Bhakra Beas under BBMB Management Board All the above-mentioned service was in work-charged capacity.
There can hardly be any dispute with the proposition of law that the work charge service of the petitioner has to be counted towards qualifying service towards pension. This issue is no longer res-integra and settled way back by a Full Bench of this Court in the case of Kesar Chand (supra).
From the above table, it is further clear that the petitioner actually served the respondent-Board from 12.3.1985 to 31.7.1992 i.e. about 7 ½ years. Now, the question arises whether the service rendered by the petitioner prior to joining the Board is to be counted towards qualifying service for the grant of pension?
It is virtually the admitted position between the parties that prior to re-organization of the erstwhile State of Punjab, Bhakra Dam was under Punjab Government. On the re-organization of the State of Punjab, Beas Construction Board which had been constituted by the Central Government for execution, construction and completion of the components RAJEEV THAKRAL 2014.12.03 14:39 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.15666 of 1998 -5- of the Beas Project and the Bhakra Dam, as per the provisions of the Punjab Reorganization Act, 1966 (hereinafter referred to as "the 1966 Act") were transferred to the Bhakra Beas Management Board i.e. the respondent- Board which was another statutory body created by the Central Government in exercise of powers conferred upon it under Section 79 of the 1966 Act. Section 80 (1) of the 1966 Act provides that when all the completed components of the Beas project are transferred to the respondent-Board, they shall cease to exist having being merged into the respondent-Board. At this stage, it would be useful to refer to the following averments made in the written statement filed by the respondent-Board, which are reproduced below:
"The Beas Construction Board was constituted by the Central Govt. in exercise of the Punjab Re-organisation Act, 1966 (Act-31 of 1966) (here-in-after referred to as Act of 1966) for execution, construction and completion of the components of the Beas Project. The completed components of Beas Project were transferred by the Central Govt. to the Bhakra Beas Management Board another statutory body constituted by the Central Govt. In exercise of the Powers conferred upon it under Section 79(1) of the Act. It was provided in Section 80(1) in the Act of 1966 when all the completed components of Beas Project are transferred to the Bhakra Beas Management Board, the Beas Construction Board referred to above shall cease to exist."
Thus, it is clear that Bhakra Dam project which was earlier under the Government of Punjab and the Beas Construction Board which was earlier under the Central Government, on the reorganisation of the erstwhile State of Punjab, through the provisions of the 1966 Act merged into the respondent-board. This change was necessitated on the formation of successor States cut out from the erstwhile State of Punjab, Haryana, Himachal Pradesh etc. as the above project was catering to all of them. RAJEEV THAKRAL 2014.12.03 14:39 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.15666 of 1998 -6- Thus, both the projects in which the petitioner served ultimately got merged into the respondent-Board. The above facts have been completely ignored by the respondent-Board while considering the case of the petitioner for counting the service rendered by him earlier in the Bhakra Dam Project and then later under the Beas Construction Board under the Central Government before joining the respondent-Board.
So far as the service rendered by the petitioner while executing the Beas Satluj link under the Beas Construction Board is concerned, the same can be viewed from yet another angle. For this, reference to the instructions dated 4.7.1991 issued by the Board would be relevant. The relevant extract of the same is reproduced for ready reference:
"Subject: Grant of benefit of past service rendered by Ex-CGEs of B.C.B. Inducted into BBMB for the purposes of pension, Gratuity, Leave and Proficiency Step-up (S) According to the existing instructions/orders the pastservice rendered by the Ex-Central Government Employees of B.C.B. Inducted in B.B.M.B on fresh appointment is not counted in the B.B.M.B for the purposes of grant of proficiency step-up(s), Entitlement of Casual/Earned Leave and grant of retirement benefits such as Pension, Gratuity, etc.
2. In partial modification of the instructions contained in Board's letter No.8170-32/88208/BP/10/1-rr dated 26.3.84, 234/3- 1200/82/10/Irr dated 28.4.84, 9921-60/B-1200/23/I-Irr Dated 31.3.86 & 15022-164/B-2/468/86/R&A dated 2.5.89 and in pursuance of the decision taken by the Board vide Item No.142.05 of its 142nd meeting held on 11.4.1991 at Chandigarh, I am directed to convey approval of the Board to the effect that the service rendered by Ex-Central Government Employees in B.C.B. inducted into B.B.M.B on fresh appointment shall be counted in the B.B.M.B for the purpose of:-
(i) grant of Proficiency step-up(s)
(ii) for determining the entitlement of Casual/earned leave for RAJEEV THAKRAL service in BBMB without any claim of carrying forward the Earned 2014.12.03 14:39 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.15666 of 1998 -7- Leave earned for service in BCB;
(iii) grant of retirement benefits of Pension & Gratuity."
Sub-section 1 and sub-section 2 of Section 80 of the 1966 Act which is also relevant provides as under:
"80. Construction of Beas Project.-(1) Notwithstanding anything contained in this Act or in any other law, the construction (including the completion of any work already commenced) of the Beas Project shall, on and from the appointed day, be undertaken by the Central Government on behalf of the successor States and the States of Rajasthan:
Provided that the Governments of the successor States and the State of Rajasthan shall at all times provide the necessary funds to the Central Government for the expenditure on the Project (including the expenses of the Board referred to in sub- section (2)) and such amounts shall be apportioned among the successor States and the State of Rajasthan in such proportion as may be fixed by the Central Government after consultation with the Governments of the said States.
(2) For the discharge of its functions under sub-section (1), the Central Government may-
(a) by notification in the Official Gazette and in consultation with the Governments of the successor States and the State of Rajasthan, constitute a Board to be called the Beas Construction Board with such members as it may deem fit and assign to the Board such functions as it may consider necessary; and
(b) issue such directions to the State Governments of Haryana, Punjab and Rajasthan and the Administrator of the Union Territory of Himachal Pradesh or any other authority, and the State Governments, Administrator or other authority shall comply with such directions."
From the above, it is clear that as per the above instructions dated 4.7.1991 read with Section 80 of the 1966 Act, the petitioner's service RAJEEV THAKRAL 2014.12.03 14:39 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.15666 of 1998 -8- from 17.2.1965 to 30.4.1984 was under the Central Government and that being so, it was required to be counted towards qualifying service towards pension. In this regard, reference can usefully be made to the judgment of the Apex Court in Jaswant Singh and others v. Union of India and others; AIR 1980 Supreme Court 115 wherein it has been held that the employees of the Beas Construction Board would be employees of the Central Government for all intents and purposes. Relevant observations from Jaswant Singh's case (supra) are extracted below:
"These provisions leave no doubt that the petitioners, though appointed under orders issued by or on behalf of the Beas Control Board or the Beas Construction Board are employees of the Central Government."
Learned counsel for the respondent-Board has argued that instructions dated 4.7.1991 would not apply to the case in hand as the same would apply only to Ex-Central Government Employees joining the Beas Construction Board. He further stated that once the petitioner had accepted the retrenchment compensation from the Beas Construction Board, he was not entitled to have his service in the Beas Construction Board counted towards qualifying service for the grant of pension from the respondent- Board. To support his proposition, learned counsel relies upon a Division Bench judgment of this Court rendered in Sukhdev Raj v. Bhakra Beas Management Board; 1994(4) RSJ 352 and the judgment of the Apex Court rendered in Jaswant Singh and others v. Union of India and others; AIR 1980 Supreme Court 115.
The submissions made on behalf of the learned counsel for the respondent-Board are to be considered only to be rejected. The argument that instructions dated 4.7.1991 would only apply in the case of Ex-Central RAJEEV THAKRAL 2014.12.03 14:39 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.15666 of 1998 -9- Government Employee joining the Beas Construction Board is fallacious. A perusal of the instructions show that the benefit under the instructions is to be given to employees of the Beas Construction Board who join the respondent-Board. Viewed from another angle, the employees of the Beas Construction Board have been held to be employees of the Central Government in Jaswant Singh's case (supra). That being so, there is no reason not to include the service of the petitioner rendered by him in the Beas Construction Board towards qualifying service for benefit of pension. Irrespective of the above, once the service rendered in the Beas Constructions Board is to be counted for Ex-Central Government Employees, there is no reason in law or in fact not to count such service for Ex-employees of the Government of Punjab as such action would be in gross violation of Article 14 of the Constitution of India being arbitrary and discriminatory. Thus, viewed from any angle, the argument sought to be raised by the learned counsel for the respondent-Board does not warrant acceptance.
The reliance of the learned counsel for the respondent-Board on Sukhdev Raj's case (supra) is misplaced. In that case, the issue so raised was culled out in para-1 of the judgment which is reproduced below:
"Petitioners Sarvshri Sukhdev Raj, Avtar Singh, Parkash Chand, Banta Singh, Sohan Singh, Balwant Singh, Sohan Lal and Nikku, who are employees of Bhakra Beas Management Board (for short, the Board), Irrigation Wing, have sought a mandate to the respondents to regularize their services after they had put in more than five years' service, in this petition under Article 226/227 of the Constitution of India."
From the above, it is clear that the issue raised in the above cited case was regarding the claim of regularisation of services and was thus RAJEEV THAKRAL 2014.12.03 14:39 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.15666 of 1998 -10- entirely different from the facts of the present case.
Reliance of the respondent-Board on Jaswant Singh's case (supra) is equally misplaced. In that case, the primary issue before the Apex Court was whether on the cessation of the Beas Construction Board its employees would automatically be absorbed in the respondent-Board which had taken over the Beas Construction Board. The answer to this question was negatived by the Apex Court on serveral counts which we may go into as the issue in the present case is entirely different.
In view of the above, the present writ petition is allowed with a direction to the respondent-Board to count the service of the petitioner rendered under the Government of Punjab in Bhakra Dam and under the Beas Construction Board towards qualifying service towards pension and accordingly grant pension to him. It is further directed that the arrears payable to the petitioner be paid within two months from the date of receipt of a certified copy of this order and in case the same is not done then from that date, till the date of actual payment, the petitioner shall be entitled to 6% simple interest on the amount due.
( SATISH KUMAR MITTAL) ( DEEPAK SIBAL )
JUDGE JUDGE
1 /12/2014
rajeev
RAJEEV THAKRAL
2014.12.03 14:39
I attest to the accuracy and
authenticity of this document
High Court Chandigarh