Punjab-Haryana High Court
Ex. Naik Bhag Chand Son Of Sh. Kali Ram vs The Director General, Central Reserve ... on 27 August, 2002
Author: S.S. Nijjar
Bench: S.S. Nijjar, S.S. Saron
JUDGMENT S.S. Nijjar, J.
1. In this writ petition under Article 226/227 of the Constitution of India, a prayer has been made for the issuance of writ in the nature of Mandamus directing the respondents to grant regular pension to the petitioner with effect from the date he was invalidated from service i.e. on 25.4.1989.This is the third writ petition filed by the petitioner, seeking retiral benefits. There is no dispute that the petitioner had served the Central Reserve Police Force (hereinafter referred to as "the C.R.P.F.") with effect from 27.2.1969 to 1.5.1989. The petitioner had joined the C.R.P.F. as a Constable on 27.4.1969. He was remustered as Constable Driver on 6.3.1970 and promoted as L/Naik Driver on 16.5.1973. Thereafter, he was'promoted as Naik Driver on 14.4.1975. On 23.11.1986, he was driving Jeep No.DED 7835 which met with a head on collision with a Delhi Transport Corporation bus. At that time, he was accompanied by Constable Dharamvir. The petitioner suffered multiple fractures on both right and left legs. He was hospitalised from 23.11.1986 to 13.5.1988. The Medical Board of the Sardar Jang Hospital, New Delhi where the petitioner had been hospitalised, issued a certificate on 28.7.1988 declaring the petitioner permanently disabled to the extent of 52%. On account of the permanent disability, the petitioner was invalidated from service w.e.f. I.S.1989.On 2.11.1989, Provisional Death-Cum-Retirement Gratuity was released to the petitioner under rule 64 of Central Civil Services Pension Rules, 1972 (hereinafter referred to as "the pension rules"). The petitioner thereafter filed CWP No.13559 of 1991 claiming the release of full amount of provident fund and the invalidation pension. The writ petition was allowed and the respondents were directed to pay a sum of Rs.25,000/- alongwith pension at the rate of Rs.400/- per month for 20 years with effect from the date the petitioner was discharged from the service. On 27.10.1994, the petitioner made a representation claiming the release of extraordinary pension. In this representation, it is mentioned that one Ex-Naik 680332017 Bhagwan Singh s/o Chatter Singh 33 Battalion, G.C. Tadada Kalan, New Delhi who was similarly invalidated from service has been granted medical pension, handicapped pension and extraordinary pension. The petitioner therefore, claimed extraordinary pension, being similarly situated Ex-Naik Bhagwan Singh. On 4.11.1994, the respondents directed the petitioner to give details, like unit from which he had proceeded on invalidation pension, the nature of injuries sustained as these details were not available in the application. The petitioner that respondent No. 3 personally and furnished the service particulars sought. However, the pension was not granted to the petitioner on the ground that the particulars were not available in the office of respondent No.3. The petitioner was, therefore, constrained to serve a legal notice on the respondents dated 5.3.1996. Since the petitioner did not receive any reply to the legal notice, he filed CWP No.3818 of 1997 seeking a writ of Mandamus directing the respondents to grant pension to him alongwith arrears with effect from the date of retirement of the petitioner with interest. In this writ petition, notice of motion was issued. Thereafter, it was permitted to be withdrawn to file afresh on 15.2.2000. Therefore, the present writ petition has been filed.
2. It is submitted that the petitioner is entitled to pension under rules 48-A and 64 of the pension rules. The petitioner at the time of invalidation had served C.R.P.F. for 20 years, 2 months and 4 days. Thus, the petitioner had completed more than 20 years of qualifying service. The details are clear from the discharge certificate itself, Annexure P-3. This certificate contains all the necessary details for the grant of pension. It mentions the date of birth of the petitioner being 4.2.1951 and the date of enlistment in C.R.P.F. as on 27.2.1969. It also mentions that he was discharged by order of Comdt. 49 Bn C/o P.III-1/89-49, EC-I dated 25.4.1989 consequent to the invalidation w.e.f. 1.5.1989, after serving 20 years, 2 months and 4 days. His character has been assessed as fair. It has been declared that he is not filt for future employment with C.R.P.F. The details of the wounds and injuries are given as under:-
"9. wound/injuries Details of disability. As per medical certificate dated 26.7.88 operation case for fracture neck and right femour and cauciate ligement fractures joint with residual mediate restriction of right nip and knee with inability to climb stair and sit cross leged I" shortening of right lower limb."
3. The discharge certificate also mentions his Force No. 690483176 and his rank as. Naik.
4. Learned counsel for the petitioner has submitted that the aforesaid details are sufficient for the grant of pension. The respondent arbitrarily declined to grant the pension to the petitioner on the ground that the necessary details of service are not available.
5. In the written statement filed on behalf of the respondents, it has been pleaded that the accident, as a result of which the petitioner and Constable Dharamvir Singh, suffered injuries, was caused due to rash and negligent driving of the jeep by the petitioner. Therefore, he was dealt with departmentally and awarded the penalty of stoppage of one increment. It has been denied that the petitioner took the vehicle to carry out maintenance of vehicle as directed by GAD (Well). The petitioner had stated that criminal case was registered against the driver of the D.T.C. Bus, registration no. DEP-9008. This allegation has also been denied by stating that no criminal case appears to have been filed against the driver of DT.C. Bus. With regard to invalidation pension, it is stated that the petitioner is receiving invalidation pension at the rate of Rs.375/- w.e.f. 1.5.1989 as admissible under the pension rule and as authorised by PPO No. 89/2378I/ IP/Pen. 1 dated 31.10.1998. It is stated that since the petitioner is in the receipt of invalidation pension, his case for normal pension, after 20 years of service, is not covered, under the rules. The claim of the petitioner that EX-Naik Bhagwan Singh is in receipt of three pensionsjs denied. However, the only reason put forward is that the petitioner has not given details/documents with regard to the retiral benefits to his colleague, ft is further stated that the petitioner is not entitled to extraordinary pension as he sustained injuries due to his own fault/negligence as established in the court of enquiry. It has also been stated that respondent no. 2 was unable to help the petitioner as full details of the case were not supplied. Learned counsel for the respondents submitted that the petitioner is not entitled to the benefits of regular pension, as he has been invalidated out of service due to his own fault. He has even been punished by the appropriate authority by withholding one increment.
6. We have anxiously considered the submissions made by the learned counsel for the parties.
7. Undoubtedly, the claim of the petitioner would have to be considered under the Central Civil Services Pension Rules, 1972. Rule 3(1) (q) defines "qualifying service" to mean service rendered while on duty or otherwise which may be taken into account for the purpose of pensions and gratuities admissible under these rules. According to nil? 13, qualifying service commences from the date a government servant takes charge of the post, to which he is first appointed either substantively or in an officiating or temporary capacity. The officiating or temporary service has to be followed by substantive appointment, without interruption for the period given as qualifying service. On superannuation, a government servant who has retired on attaining the age of compulsory retirement would be entitled to the superannuation pension as provided under rule 35. Under rule 36, a government servant who retires, or is retired, in advance of the age of compulsory retirement is entitled to retiring pension. Invalidity pension is granted, if a government servant retires from the service on account of any bodily or mental infirmity which permanently incapacitates him for the service. This pension is to be provided on the basis of the recommendations of a Medical Board. Rule 48 provides that a government servant may retire from service on completion of 30 years of qualifying service. Rule 48-A provides that a government servant may also seek retirement after completion of 20 years of qualifying service. Rule 49 provides that if a government servant retires before completing qualifying service often years, he shall be paid gratuity to be calculated at the rate of half months emoluments for every completed six monthly period of qualifying service. A government servant retiring, after completing qualifying service of not less than 33 years would be entitled to pension at the rate of 50% of average emoluments subject to a maximum of Rs.4500/- per month. This amount is revised from time to time. Rule 49 (2) (a) and(b), which is relevant for the decision of this writ petition, is as under;-
"49(1). - (2) (a). In the case of a government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty three years, the amount of pension shall be calculated at fifty percent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensum.
(b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of then years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than (Rupees three hundred and seventy-five) per mensum."
8. A perusal of the aforesaid rule clearly shows that person who has completed more than 10 years of qualifying service is entitled to pension which shall be proportionate to the amount of pension under Clause (a) and in no case, the amount of pension shall be less than Rs.375/-. This amount has been enhanced with effect from 1.1.1996 to Rs.1275/-. In the present case, admittedly, the petitioner has completed over 20 years of qualifying service. Thus, clearly he is entitled to retirement pension. The claim of the petitioner is sought to be rejected on the ground that he has not furnished complete particulars. In our opinion, the aforesaid reason has been put forward only to justify the failure of the concerned officer to gjve the benefit of the pension rules to the petitioner. A perusal of the office order No.III/89-48-EC.I dated the Taran Taran 25.4.1989 clearly shows that the respondents were aware of all the necessary details with regard to the service rendered by the petitioner. Furthermore, the order sanctioning payment of provisional death-cum-retirement gratuity also indicates that the respondents were aware of the service particulars of the petitioner, including the injuries which led to his incapacitation. In such circumstances, we are of the considered opinion that the decision taken, by the respondents is wholly arbitrary and clearly violative of Article 14 of the Constitution of India. The second reason put forward by the respondents is that the petitioner was found guilty of driving the jeep negligently resulting in the accident that caused injuries to him. Consequently punishment of withholding one increment has been awarded to him. Because he has been punished, no pension can be granted to the petitioner. This conclusion cannot be supported by any of the rules. Undoubtedly, rule 9(1) permits the President to withhold pension of a government employee, if in any departmental or judicial proceedings, the petitioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment. This rule enables the disciplinary authority to withhold the pension only if the pensioner is found guilty of grave misconduct or negligence. The aforesaid rule has been clarified by Government of India decision contained in G.I., Dept of Per. & A.R.O.M. N6.134/17/80-ADV-I, dated the 28th February, 1981. In this decision, it is clearly laid down that grave misconduct or negligence cannot be established as a result of minor penalty proceedings. Therefore, it has been suggested that all minor penalty proceedings, even if continued, after retirement do not have any effect on the pension, in the matter of reducing or withholding of his pension. In the present case, admittedly, only a minor punishment has been imposed on the petitioner. Therefore there would be no justification in withholding the pension to which the petitioner is entitled under the rules. We are also of the considered opinion that no worthwhile reason has been given by the respondents to distinguish the case of the petitioner from the pension case of Ex-Naik Bhagwan Singh.
9. For the reasons recorded above, this writ petition is allowed. The petitioner is held entitled to pension under the Central Civil Services (Pension) Rules, 1972. The respondents are directed to pay the retiral benefits of the petitioner within a period of three months from today. The amount due and payable to the petitioner shall carry interest @ 12% from the date of retirement till payment.
Sd/- S.S. Saron, J.