Punjab-Haryana High Court
Balwant Singh vs State Of Haryana And Others on 30 November, 1999
ORDER
1. Balwant Singh, by way of present petition under Articles 226 of the Constitution of India, seeks issuance of a writ in the nature of certiorari so as to quash order Annexure P-6 dated July 10, 1997, vide which he was not allowed benefit of service rendered by him under the Zila Parishad for computing/calculating his pension and other retiral benefits.
2. Brief facts giving rise to the present petition need a necessary mention. The petitioner came to be appointed as Sanitary Daroga on November 8, 1963, in the office of the Zila Parishad, Ambala, and it is his case that he worked as such there till November 30, 1973. Vide Haryana Act No. 22 of 1973 all existing Zila Parishads were abolished and all liabilities including employees stood transferred to the Government of Haryana. Consequently, the petitioner was absorbed in the Health Department and posted as Sanitary, Daroga on December 1, 1973, in the office of the Chief Medical Officer, with all the benefits admissible to the Government employees. The service rendered by the petitioner in the Zila Parishad was, however, net qualified for pension as there was no provision made for grant of pension. However, the petitioner kept on working on the post of Sanitary Daroga as a permanent employee after his absorption upto February 2, 1977. Having put in three years continuous service thereat, he was constrained to submit his resignation to the Civil Surgeon, Civil Hospital, Ambala, respondent No. 3. It is the case of the petitioner that even at that stage there was no pension admissible to the petitioner. He tendered his resignation in the circumstances to enable him to join on the post of Sanitary Inspector, Municipal Committee, Mandi Dabwali, for which post he was selected. The resignation of the petitioner was accepted unconditionally vide letter dated April 14, 1977, Annexure P-2, with effect from February 3, 1977. In the manner aforesaid, it is the case of the petitioner that he rendered service for a period of 13 years as permanent employee and was, thus, entitled to grant of pension and other post retiral benefits.
3. The petitioner claims entitlement to pension on the basis of instructions dated November 22, 1991, which came into being pursuant to a judgment of this Court in extending the benefit of pension, gratuity and other retiral benefits. The petitioner thereafter made a number of requests to the concerned authorities to expedite grant of post retiral benefits to him, but when the same brought no tangible results and in fact when his representation was dismissed vide order Annexure P-6, the present writ petition came to be filed for the reliefs already mentioned.
4. Pursuant to notice issued by this Court, the respondents have filed reply. It has inter alia been pleaded in the written statement filed on behalf of respondents 1 to 3 that the present writ petition is not maintainable as no fundamental/constitutional right of the petitioner has been infringed; that the writ petition is barred by time; that the petitioner had tendered resignation on February 2, 1977, which was accepted on April 14, 1977; that the writ petition had been filed after a delay of 20 years. It is then pleaded that the petitioner is not entitled to any pensionary benefits as per Rule 3.17-A of the Punjab Civil Services Rules, Volume-II (hereinafter referred to as "the Rules") read with Rule 4.19(a). The rules on which reliance, for negating the claim of the petitioner, is placed reads thus :-
"3.17A(d) Resignation from the public service or dismissal or removal from it for misconduct, insolvency, inefficiency, not due to age, or failure to pass a prescribed examination will entail forfeiture of past service in terms of Rule 4.19(a) of Punjab Civil Service Rules, Vol. II.
19(a) Resignation from public service, dismissal or removal from it, either under proviso (c) to Article 311(2) of the Constitution for over anti-national activities such as sabotage, espionage etc. or for misconduct, insolvency, inefficiency not due to age or failure to pass a prescribed examination, entails forfeiture of past service and no pension shall be granted in the aforementioned circumstances."
5. The case of the petitioner has also been opposed on the ground that the petitioner was a temporary employee of Health Department after his absorption in the Government service. The case of the petitioner is also contested on the ground that when the petitioner joined on the post of Sanitary Inspector after resignation, he had not sought permission to join another department of the Government and, therefore, by virtue of Note below rule 4.19(b) of the Rules, the petitioner shall not be entitled to grant of any post retiral benefits.
6. The petitioner has filed replication, controverting the pleadings made in the written statement.
7. When the matter earlier came up for hearing before this Court on August 13, 1999, Mr. M. M. Kumar, learned counsel representing the petitioner, during the course of arguments, sought an adjournment with a view to file an affidavit of the petitioner to the effect that he had tendered resignation with permission of the employer to join the new job. Additional affidavit has been filed, to which reply has been given by the State.
8. The petitioner pleads in the additional affidavit that he was working on the post of Sanitary Daroga in the office of the Chief Medical Officer, Ambala. A post of Sanitary Inspector at Municipal Committee, Shahbad Markanda, was advertised in the newspaper. He was eligible and applied for the same through proper channel. His application was duly forwarded by the Chief Medical Officer, Ambala, to the Municipal Committee, Shahbad Markanda. On January 21, 1977, he obtained 'No Objection Certificate' from the Chief Medical Officer to the effect that he had no objection if the petitioner was selected as Sanitary Inspector. Copy of the certificate has been annexed with the additional affidavit as Annexure P-7. It has further been pleaded that after his appointment to the post of Sanitary Inspector, the petitioner duly informed the Chief Medical Officer, Ambala, before proceeding to join duty of February 3, 1977. The departure report was duly received by the office of the Chief Medical Officer, Ambala. Copy of the same has been annexed with the additional affidavit as Annexure P-8.
9. In reply to his additional affidavit, it has been pleaded by the State that after submitting his resignation from the office of the Civil Surgeon, Ambala, the petitioner had joined the service of the Municipal Committee, Shahbad Markanda, as Sanitary Inspector, from where his services were terminated/discharged for grave misconduct. Copy of the resolution dated March 31, 1978, passed by the Administrator, Municipal Committee, Shahbad, regarding dismissal of the petitioner, has been placed on record as Annexure R-RI/T. It is, thus, pleaded that the petitioner was dismissed from service and was not entitled to pensionary benefit as per Rule 2.2.(a) of the Rules. It is also pleaded that the certificate filed with the additional affidavit i.e., Annexure P-7 appears to be fabricated. The attested copy of the experience certificate issued by the Chief Medical Officer, Ambala, it is stated, contains a different language. Copy of experience certificate earlier submitted by the petitioner has been Annexure with the reply as Annexure R-V.
10. After hearing the learned counsel representing the parties and going through the records of the case, the Court is of the view that the petitioner deserves the relief asked for by him in the present writ petition. Before, however, merits of the case, entitling the petitioner to pensionary benefits are considered, it will be better to clear the decks in so far as the plea of the respondent State with regard to the dismissal of the petitioner for grave misconduct is concerned, inasmuch as if the petitioner was dismissed from service, as is the contention of the State, he may not be entitled to any post retiral benefits whatsoever. It may be recalled at this stage that it was the positive case of the petitioner that he was discharged from service during the period of probation. The order by which the petitioner was discharged from service, as is his contention, or dismissal from service, as is the contention of the State, has been annexed with the reply to the additional affidavit as Annexure R-IV/T. It is true that the earlier part of the order Annexure R-IV/T does contain some adverse comments against the work and conduct of the petitioner, but in ultimate analysis it was observed that the work, conduct and behaviour of the petitioner was not satisfactory and, therefore, he should be discharged from service of the Municipal Committee. It has further been clearly mentioned that the petitioner is on probation. The order Annexure R-IV from its very perusal cannot be styled to be the one by which the petitioner might have been dismissed from service. The contention of the petitioner that he was asked to quit during the period of probation is, in fact, correct and in consonance with the order relied upon by the State i.e. Annexure R-IV.
11. From the facts detailed above, it transpires that the petitioner joined Zila Parishad on November 8, 1963 and continued to be the employee of the Zila Parishad upto November 30, 1973. Thereafter he was absorbed in the Health Department and continued to be serving the said department upto February 2, 1977. A Division Bench of this Court in Rishal Singh and others v. The State of Haryana 1993 (2) RSJ 545 held that the employees of the District Boards, Zila Parishad and Panchayat Samities were entitled to retirement benefits. While dealing with the facts of the case in Risal Singh's case it has further been observed that in case the petitioner were actually absorbed in the service of the State Government with effect from November 26, 1973, and retired thereafter, they shall be entitled to retiral benefits in the same terms as has been done in the last memorandum dated November 22, 1991. It may be mentioned at this stage that prior in point of time this Court had observed that employees of District Boards, Zila Parishads etc. who were absorbed in other Government employments, should be entitled to post retiral benefits. It is thereafter that instructions dated November 22, 1991 (Annexure R-3) came into being. It is not disputed that by virtue of these instructions the petitioner is entitled to post retiral benefits.
12. The matter would have ended there, but inasmuch as the respondent-State has joined issue with the petitioner with regard to his joining the new department after resignation and permission, the said question has still to be determined.
13. It may be recalled at this stage that the petitioner had sought an adjournment to substantiate that he had sought permission to join the new department when he resigned from the Health Department. In Annexure P-7 it has been mentioned that the petitioner was working as Sanitary Daroga with effect from November 8, 1963, to November 30, 1973, in Zila Parishad and from December 1, 1973, to date in the Health Department and that he was a regular Haryana Government employee. It has further been stated that there was no objection if he was selected as Sanitary Inspector. This certificate was issued on January 21, 1977. It may be reiterated at this stage that the petitioner joined as Sanitary Inspector in Municipal Committee, Shahbad Markanda, on February 3, 1977. The authenticity of this document has been disputed on the only ground that the language employed therein is different from the language used in Annexure R-V and, therefore, the petitioner must have procedure certificate Annexure P-7.
14. I find no merit in the contention of the learned State counsel. The document relied upon by the State is only an experience certificate, as would be clearly made out from Annexure R-V itself. It starts with bold words 'EXPERIENCE CERTIFICATE'. These words have been underlined and it is thereafter that it has been mentioned that the petitioner had worked as Sanitary Daroga from November 8, 1963 to November 30, 1973 under Zila Parishad and from December 1, 1973, to February 2, 1977, under the Health Department. There is no difference between Annexure R-V and Annexure P-7 in so far as the experience of the petitioner either on the post of Sanitary Daroga or on the post of Sanitary Inspector in the Health Department is concerned. The difference is only with regard to 'No objection' of the petitioner joining as Sanitary Inspector. This difference ought to have been there inasmuch as Annexure R-V, as mentioned above, is only an experience certificate. The document Annexure R-V does not deal with regard to the petitioner having obtained a 'No objection certificate' or not. Mr. Kumar, learned counsel representing the petitioner, has shown me original of Annexure P-7 and the same has been signed by the Chief Medical Officer, Ambala.
15. Rule 4. (19)(b) of the Rules reads :-
"4.(19)(b) Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public service."
16. It is proved in the present case that the petitioner had resigned from Health Department with permission to take up an assignment in Municipal Committee, Shahbad Markanda. It is, thus, not a case where the petitioner might have resigned from service and would not be entitled to the grant of post retiral benefits. The matter is not res integra, inasmuch as rule 4.19(b) has been interpreted by this Court in M. M. Lal Bareja v. State of Haryana, 1995 (1) AIJ 532. It has been held therein that pension is payable even to an employee who was holding temporary post in the State Government and Rules also comprehend grant of pension to a person who has resigned from service in order to take up another appointment and such resignation is not to be treated as resignation from public service.
17. The last contention raised by Mr. Nitin Kumar, learned counsel representing the State, in opposing the prayer of the petitioner is with regard to the delay in filing the present petition. True, the petitioner approached the authority for the first time on January 12, 1995, when he made representation Annexure P3 but his claim was rejected on July 10, 1997. So the petitioner lost no time in approaching this Court. That apart, claim of pension is a recurring cause of action and cannot be rejected on delay alone. What I have observed above is supported from various judgments of this Court and Hon'ble Supreme Court. Reference may, however, be made only to Mrs. Bimla Devi v. State v. State of Haryana (1991) 5 Serv LR 682.
18. In view of the discussion above, it thus transpires that the petitioner continuously worked from November 8, 1963, to February 2, 1977, in various Government departments, reference whereof has been made above. In the manner aforesaid, the petitioner worked for a period of little less than 14 years. The respondents are directed to determine the pension payable to him in accordance with the rules. It requires to be mentioned that as per instructions Annexure R-3, the petitioner is bound to return the contributory provident fund, if any. In view of the aforesaid instructions, the contributory provident fund, if any, made over to the petitioner has to be returned by him. If the same was paid to him, as Mr. Kumar is not sure about the factum of the petitioner having received the same, the same shall be returned by the petitioner. At this stage, Mr. Kumar has drawn my attention to the instructions, which in terms say that such an amount i.e. contrary provident fund, can be adjusted against gratuity. In these circumstances, the respondent State shall deduct the amount, if any already paid to the petitioner, and make over the balance amount within six weeks from today.
19. In the peculiar facts and circumstances of the case, the parties are left to bear their own costs.
20. Petition allowed.