IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No. 5263 of 2008
DATE OF DECISION : 03.08.2009
Ashok Kumar Chadha
.... PETITIONER
Versus
Haryana Vidyut Parsaran Nigam Limited, Panchkula
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
Present: Mr. R.K. Malik, Senior Advocate, with
Mr. Surya Pratap Singh, Advocate,
for the petitioner.
Mr. Mohnish Sharma, Advocate,
for the respondent.
***
SATISH KUMAR MITTAL , J.
The petitioner has filed the instant petition under Article 226 of
the Constitution of India for issuing direction to the respondent Nigam to
grant him pension by treating his service from 8.9.1995 to 31.1.2008 as
qualifying service for the said purpose; and further to release the benefit of
yearly increments from 8.9.1995 to 31.1.2008, which has also not been
given to the petitioner.
In the present case, the petitioner joined as UDC with the
Haryana State Electricity Board (now Haryana Vidyut Parsaran Nigam
Limited) on 9.2.1973. He was removed from service on 15.4.1987 on
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account of a departmental action taken against him. The petitioner raised an
industrial dispute. The matter was referred to the Industrial Tribunal. The
Labour Court, Ambala, vide its Award dated 8.9.1995 (Annexure P-1) set
aside the order of removal and directed the respondent to appoint the
petitioner afresh as UDC on the same terms and conditions, upon which he
was working prior to the passing of order of removal from service. The
respondent challenged the said Award before this Court by filing CWP No.
3378 of 1996. This Court, vide order dated 7.3.1996, stayed the operation of
the Award and admitted the said writ petition. Subsequently, the petitioner
moved an application for vacation of the stay order. Vide order dated
29.7.1996 (Annexure P-2), the stay order was vacated by this Court, while
making the following observations :
“After hearing learned counsel for the parties I am of the
opinion that if the order staying operation of the award of the
Labour Court is allowed to stand, the workman will suffer a
substantial loss as in the absence of a letter of appointment as
directed by the Labour Court, he will not be entitled to salary
for the period the writ petition remains pending in this Court. In
this view of the matter, stay order dated 7.3.1996 is vacated.
However, it is directed that in the event of the writ petition
being allowed, the workman will have no claim to continue in
service in view of the letter of appointment if now issued by the
management in terms of the order of the Labour Court. It is
clarified that it will be open to the petitioner Board not to offer
appointment to the workman but in that eventuality the Board
shall be liable to pay salary to the workman from the date of
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order in the event of the writ petition being dismissed. The
respondent workman shall in that event be also entitled to
interest on the delayed payment of salary from the due date at
the rate of 12% per annum as in the absence of the above
directions he will suffer a substantial loss even if the writ
petition is dismissed on a later date.”
Ultimately, vide judgment dated 6.10.1998 (Annexure P-3), the said writ
petition filed by the respondent was dismissed being without merit. The
respondent filed LPA against the said judgment, which was also dismissed
vide order dated 13.10.2000 (Annexure P-6).
After the passing of the judgment dated 6.10.1998 by this
Court, the respondent offered appointment to the petitioner vide
appointment letter 30.9.1999 (Annexure P-4). In pursuance of this letter, the
petitioner was allowed to join duty on 12.10.1999. Thereafter, he continued
in service. Vide order dated 1.5.2000 (Annexure P-5), the petitioner was
allowed salary of the post of UDC with effect from 29.7.1996 (date of the
interim order passed by this Court) to 11.10.1999 (date of reinstatement of
the petitioner). Thereafter, on attaining the age of superannuation i.e. 58
years, the petitioner retired from service on 31.1.2008. It is made clear here
that from 29.7.1996 till his retirement, he was paid salary without giving
any yearly increment. After the retirement, the petitioner has been denied
the pension on the ground that he has rendered total service of 8 years 3
months 20 days (from 12.10.1999 to 31.1.2008) i.e. less than 10 years, and
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as per Rule 6.16 (1) of CSR Vol. II, a retiree is entitled for pension, only if
he has 10 years qualifying service. Hence, the petitioner filed the instant
petition.
In the written statement, it has been pleaded by the respondent
that only the service rendered by the petitioner from 12.10.1999 (date of
joining in pursuance of the appointment letter) to 31.1.2008 (date of
retirement) is to be counted for the purpose of granting pension. It is stated
that prior to that, the petitioner did not render any service. However, under
the interim directions of this Court, the salary was paid to him from
29.7.1996 to 11.10.1999. Therefore, the said period, during which the
petitioner actually did not serve the respondent, cannot be counted towards
his qualifying service for the purpose of granting pension. Regarding not
granting of annual increments, it has been stated that as per the recruitment
and promotion policy of the respondent Nigam, a directly appointed UDC is
required to pass the Departmental Accounts Examination of Ministerial
Establishment within a period of two years or within five successive
chances, whichever is earlier, failing which he is not entitled for increment
after two years. Since the petitioner failed to pass the said Examination
within the prescribed period or even during his service tenure from
12.10.1999 to 31.1.2008, he was not entitled for the grant of annual
increments.
After hearing the arguments of learned counsel for both the
parties and going through the contents of the petition as well as the written
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statement, I am of the opinion that this writ petition deserves to be allowed.
Undisputedly, the order of removal from service passed against the
petitioner was set aside by the Labour Court vide its Award dated 8.9.1995
and the respondent was directed to appoint the petitioner afresh as UDC on
the same terms and conditions, upon which he was working prior to his
removal from service. Under the said order, the respondent was bound to
give appointment to the petitioner afresh in September/October, 1995.
However, the respondent did not implement the said order of the Labour
Court and decided to challenge the same before this Court by filing CWP
No. 3378 of 1996. On 29.7.1996, the interim order of stay of operation of
the Award of the Labour Court was vacated with the observation that in the
event of the writ petition being allowed, the workman (petitioner herein)
will have no claim to continue in service in view of letter of appointment if
now issued by the management (respondent herein) in terms of the order of
the Labour Court. It was further clarified that it will be open to the
respondent not to offer appointment to the petitioner, but in that eventuality,
the respondent shall be liable pay salary to the petitioner from the date of
order i.e. 29.7.1996 till he is taken back in service under the Award, in the
event of the writ petition being dismissed. The respondent in its wisdom
decided not to give appointment to the petitioner in terms of the order of the
Labour Court. It is further admitted position that the writ petition filed by
the respondent was dismissed on 6.10.1998. On account of dismissal of the
writ petition, vide order dated 1.5.2000, passed by the respondent, the
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petitioner was paid salary of the post of UDC with effect from 29.7.1996
(date of the interim order passed by this Court) to 11.10.1999 (date of
reinstatement of the petitioner), subject to the decision of LPA filed by the
respondent. Subsequently, on 13.10.2000, the LPA filed by the respondent
against the judgment dated 6.10.1999 was also dismissed. The dismissal of
the writ petition and the LPA resulted into coming into force the Award
passed by the Labour Court. Thus, the respondent was duty bound to give
fresh appointment to the petitioner, on the same terms and conditions, upon
which he was working prior to the passing of order of removal from service.
If the respondent gave appointment letter to the petitioner on 30.9.1999 and
permitted him to join on 12.10.1999, it cannot take benefit of the same and
the petitioner cannot be deprived of his right accrued under the Award of
the Labour Court. As a fact, the petitioner has received salary from
29.7.1996 to 11.10.1999 and thereafter, he received salary on his regular
appointment till the date of his retirement. Therefore, he is to be taken in
service of the respondent for the said period. If the said period of service is
counted as the qualifying service for the purpose of pension, the petitioner
is entitled for pension, as his qualifying service comes to more than 10
years.
During the course of arguments, learned counsel for the
respondent argued that since vide interim order dated 29.7.1996, passed by
this Court, the respondent was given liberty not to give appointment letter to
the petitioner, provided the respondent pays salary to him for the said
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period. Therefore, in view of the said liberty, if the appointment letter was
issued on 30.9.1999, in pursuance of which the petitioner joined on
12.10.1999, then the respondent has rightly calculated the regular qualifying
service of the petitioner for the purpose of pension from 12.10.1999 to
31.1.2008, which is less than 10 years. In my opinion, this contention does
not have any force. The respondent cannot be given premium of its inaction.
Vide order dated 29.7.1996, this Court clearly vacated the say order and the
respondent was supposed to give appointment letter to the petitioner. It was
specifically ordered that in the event the writ petition filed by the
respondent was allowed, the petitioner will have no claim to continue in
service in view of the letter of appointment, if issued by the respondent in
terms of the Award of the Labour Court. However, an option was given to
the respondent not to offer appointment, but in that eventuality, it was liable
to pay salary to the petitioner from the date of the order i.e. 29.7.1996 till he
is taken back in service. In view of the said option, the respondent paid
salary of the entire period. Therefore, the petitioner is deemed to be in
service from 29.7.1996 to 11.10.1999. Thereafter, he joined his service on
12.10.1999 on the basis of the appointment letter issued by the respondent.
Thus, in my opinion, there is no justification with the respondent to exclude
that period from the qualifying service of the petitioner for the purpose of
grant of pension. While doing so, the respondent has illegally denied
pension to the petitioner.
After considering the arguments of learned counsel for the
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parties on the issue of denial of annual increments to the petitioner, I am of
the opinion that the respondent is not justified in denying the said benefit to
the petitioner. In clause 4 of the appointment letter, issued to the petitioner
on 30.9.1999, it was stated that the appointee will have to qualify the
Departmental Accounts Examination for Ministerial Establishment within a
period of two years or within five successive chances, whichever is earlier.
In case, he fails to qualify the said examination within the prescribed period,
his services shall be terminated without notice and without assigning any
reason. There is no stipulation in the appointment letter that if the appointee
does not qualify the said examination, he will not be entitled for yearly
increment. In the written statement, no rule or instruction has been quoted,
which empowers the respondent to withhold the benefit of annual
increment, in case the employee does not qualify the Departmental
Accounts Examination for Ministerial Establishment within the prescribed
period. Even during the course of arguments, learned counsel for the
respondent could not show any rule, regulation or instruction in this regard.
He was not in a position to justify the action of the respondent in not
granting yearly increments to the petitioner during his service. Thus, in my
opinion, the withholding of yearly increments in case of the petitioner is
also without any justification.
In view of the above, the instant writ petition is allowed. The
respondent is directed to release the pension to the petitioner, while taking
the period from 29.7.1996 to 31.1.2008 as his qualifying service for the
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purpose of grant of pension and to calculate the pension and other retiral
benefits, while granting yearly increments to the petitioner during his
service tenure. After deducting the amount already paid, if any, the
remaining amount due to the petitioner, be released with interest at the rate
of 6% per annum.
No order as to costs.
August 03, 2009 ( SATISH KUMAR MITTAL ) ndj JUDGE