CIVIL WRIT PETITION NO.17944 OF 2007 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: SEPTEMBER 14, 2009
Kali Charan
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Ravi Verma, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr.DAG, Haryana,
for the State.
****
RANJIT SINGH, J.
The petitioner initially was appointed in the Education
Department on 18.11.1961. On formation of State of Haryana, his
services were allocated to the State Education Department w.e.f
1.11.1966. In the year 1985, disciplinary proceedings were initiated
against the petitioner for having remained absent from duties. The
petitioner has remained vague in making mention for the period he
remained absent. However, he has disclosed in the petition that
memo dated 26.11.1985 was served upon him and after holding the
CIVIL WRIT PETITION NO.17944 OF 2007 :{ 2 }:
regular enquiry, charge of absence was established against him.
Accordingly, the services of the petitioner were terminated w.e.f.
25.8.1999. The petitioner filed an appeal against this order on
19.11.1999. The Appellate Authority issued direction that the
services of the petitioner be terminated w.e.f. 4.5.1985 instead of
5.10.1999.
Feeling aggrieved against this order, the petitioner filed
Civil Writ Petition No.385 of 2003 primarily with the grievance that
copy of the enquiry report had not been supplied to him and as such,
whole proceedings were vitiated. This writ petition was allowed on
3.5.2004. While quashing the termination order, directions were
issued to the respondents to pass a fresh order after supplying him
copy of the enquiry report. Thereafter, respondent No.2 re-
considered the matter and decided to compulsorily retired the
petitioner from service w.e.f 4.5.1985 vide order dated 2.1.2006.
The petitioner, thus, claims that he became entitled to the
grant of retiral benefits like pension, gratuity, leave encashment etc.
The petitioner submitted the necessary documents on 17.8.2006 with
a request to release the retiral benefits on the basis of his qualifying
service for the period from 18.11.1961 to 4.5.1985. The case of the
petitioner was returned as the service book was in custody of
respondent No.4. The pension case of the petitioner was re-
submitted but was again returned with the remarks to send the same
after getting the service book verified from the concerned Section
Officer. The petitioner accordingly prays that his pension has not
been released to him due to non availability of service book. The
petitioner had first served a legal notice and thereafter filed the
CIVIL WRIT PETITION NO.17944 OF 2007 :{ 3 }:
present writ petition seeking direction for release of pension and
other retiral benefits due to him.
In the reply filed, the respondents have disclosed the
factual position by way of preliminary submissions. It is stated that
the petitioner was appointed on 18.11.1961 and he worked in the
different Institutions upto 1.1.1978. While working in the Government
Senior Secondary School, Gudiani (Rewari), the petitioner absented
from duty w.e.f. 2.1.1978. The petitioner was accordingly charge
sheeted under Rule 7 of the Haryana Civil Services (Punishment and
Appeal) Rules, 1952 (for short, “the Rules”) vide order dated
12.11.1980 for his willful absence from duty from 1.1.1978 to
8.5.1980 and from 10.5.1980 onwards. The petitioner was warned to
be careful in future vide order dated 30.6.1982, but still he failed to
resume duties. He was again served a memo of charge dated
16.1.1985. For the said charge sheet also, the petitioner was warned
to be careful on 10.9.1985. The petitioner, however, continued to
remain absent from duty, for which he was again charge sheeted on
26.11.1985. Instead of submitting reply to this charge sheet, the
petitioner submitted his resignation from service. At that stage, the
Department after proper advice, did not consider it appropriate to
accept the resignation of the petitioner, as he was continuously and
willfully absent from duty w.e.f. 22.12.1977 to 1.1.1986. The
proceedings had also been initiated against the petitioner under Rule
7 as already stated. The enquiry was held and enquiry report was
submitted. The charges of willful absence from duty against the
petitioner were duly proved and his services were accordingly
terminated vide order dated 25.8.1999.
CIVIL WRIT PETITION NO.17944 OF 2007 :{ 4 }:
It has neither been clarified by the petitioner nor by the
respondents that how the order of termination was passed in the year
1999 for the absence, which was from 1977 to 1986. It appears that
the petitioner had continued to remain absent even after 1986 and
the proceedings apparently were brought to finality in the year 1999.
It is because of this reason that his services were ordered to be
terminated on 25.8.1999. However, it is clear that the petitioner had
filed an appeal against this order and the Appellate Authority
directed that the services of the petitioner be terminated w.e.f.
4.5.1985 i.e. the date he has been absenting himself from duty
instead of 5.10.1999. The petitioner, thus, apparently had continued
to remain absent from 22.12.1977.
The stand of the respondents in regard to claim of
pensionary benefits is that the service book of the petitioner has
been reconstructed. It is stated that the record of service of the
petitioner for the period from 18.11.1961 to 31.3.1962 and from
1.7.1965 to 30.11.1970 is not found and hence, such service has not
been verified. Still this service has been treated to be verified
service. His qualifying service, thus, would work out to be just about
16 years. It is, thus, stated that he has not completed 25 years of
qualifying service, when he was compulsorily retired nor has he
attained the age of 55 years and hence, he is not entitled to
pensionary benefits. The stand taken by the respondents can not be
faulted.
Such indulgence to a person like the petitioner as shown
was really uncalled for. It is nothing sort of largesse shown to the
petitioner. A person who has remained absent from 1977 onwards
CIVIL WRIT PETITION NO.17944 OF 2007 :{ 5 }:
obviously was initially treated with kids glove and left with warnings.
He still continued to remain absent for a period which nearly is of
three decades. Finally, he was shown the door but still after a period
of 14 years. The Appellate Authority applied some correction to this
wholly untenable position by directing termination of the petitioner
w.e.f. 4.5.1985. This could not be termed as a complete correctional
measure required to be taken in this case. The petitioner does not
deserve and can not be allowed to take any more advantage despite
being continuously absent. The consequence of earlier unwarranted
position is that he is now before the Court to ask for pension and
pensionary benefits. Strangely, he is claiming to his credit nearly 23
years of service. A person who was required to be properly dealt with
for such a prolonged absence, a grave misconduct, has been
allowed to escape from the rigors of law. This Court allowed his
earlier writ petition on purely technical ground and directed further
action but he has been shown much too kindness by the authority.
The respondents were directed to pass a fresh order when the
petitioner appears to have got a lease of new life and the order of
premature retirement followed. He has now expended that lease to
file the present petition to seek pension and pensionary benefits by
claiming to be in service upto 4.5.1985 whereas in fact he had
continued to remain absent from 22.12.1977.
Can a person, like the petitioner, who has hardly worked
in the Department be allowed to claim pension, though he has not a
pensionable service? The submission by counsel for the petitioner
that Rule 3.26 (d) of C.S.R. Volume I, Part I, can not be applied to
the petitioner as he has been compulsorily retired by way of
CIVIL WRIT PETITION NO.17944 OF 2007 :{ 6 }:
punishment and not under the said Rule to be illegal is not worthy of
acceptance. If the petitioner has been compulsorily retired by way of
punishment, then he would have to complete a pensionable service
as required under the Rules before he could be granted pension.
Even if Rule 3.26 (d) is not applicable, still the petitioner has to show
that he has a qualifying service for grant of pension, which he does
not possess. Similarly, the reliance placed by counsel for the
petitioner on the case of Balkar Singh Vs. Union of India and
others, 1991 (1) SCT 523 would be of no help to him. That was a
case of compulsorily retirement of the petitioner therein, who had not
completed qualifying service for pension. Observing that the order
whereby employee is rendered not eligible for pension would amount
to termination of his service, the said order of compulsorily retirement
was quashed. The facts in the present case are entirely different.
Here the petitioner has been ordered to be compulsorily retired as a
punishment, which has been awarded to him by following due
process of law. The petitioner can not make a grievance that the
order punishing him with compulsorily retirement could not have been
made. Rather, the order of termination has been changed to
compulsorily retirement after due consideration by holding a
proceedings against the petitioner, for which liberty was given by this
Court. The petitioner, in my view, did not deserve the order made by
the authorities of changing his order of termination for absence
running into years to that of compulsorily retirement. Can he still pray
for something more? He certainly can not.
The petitioner has also referred to the case of Ganga
Bishan Vs. State of Haryana, 1994 (3) PLR 691. This was a case
CIVIL WRIT PETITION NO.17944 OF 2007 :{ 7 }:
where the petitioner therein was prematurely retired on completing 18
years, 5 months and 15 days services. He was held entitled to
pension in view of Rule 6.16 (2) of Punjab Civil Services Rules,
Volume II. It was observed by this Court that once a premature
retirement is allowed before completing 20 years service without any
condition, then a person can not be denied pension for want of
qualifying service. Premature retirement order was not passed by
way of punishment. This was a case where the request of the
petitioner was accepted for premature retirement unconditionally. In
this background, the provisions of Rule 6.16(1) were invoked to say
that this provides the scale of service gratuity admissible to a person
who retires before completing qualifying service of 10 years. The rule
apparently makes a provision for proportionate pension once the
person has rendered qualifying service of 10 years or more but less
than 33 years. The ratio of this case also has no applicability to the
facts of the present case. Once the petitioner has been directed to be
compulsorily retired by way of punishment, he certainly can not claim
pension as a matter of right and pension in such a case would be
admissible only in case the petitioner had completed pensionable
service, which was 25 years. There is, thus, no merit in the writ
petition.
The same is accordingly dismissed.
September 14, 2009 ( RANJIT SINGH ) khurmi JUDGE