Posted On by &filed under High Court, Punjab-Haryana High Court.


Punjab-Haryana High Court
Roshan Lal Sharma vs State Of Punjab on 11 October, 2000
Author: R Mongia
Bench: R Mongia, K Gupta

JUDGMENT

R.S. Mongia, J.

1. The petitioner was appointed as a Clerk in the Board of Ayurvedic and Unani Systems of Medicines (hereinafter referred to as “the Board”) on 16.10.1961. He was sent on deputation to the Punjab Nurses Registration Council (hereinafter referred to as “the Council”) on 13.6.1977. Vide order dated 18.5.1981, Annexure P-4, the petitioner was absorbed bytheCouncil. Oneoftheterms of absorption was that “the Board of Ayurvedic and Unani Systems will pay gratuity at the rate admissible to the employee of the Ayurvedic Board with effect from the date of his appointment to 13.6.1977.”

2. In the year 1984, some dispute regarding the absorption of the petitioner and the payment of gratuity arose and the matter was referred to the Government of Punjab, Department of Health and Family Welfare. The order was issued by the Government of Punjab, Department of Health and Family Welfare to the Registrar of the Council on 27/30.4.1984. The letter reads as under :-

“Sub : Permanent absorption of Sh. Roshan Lal Sh arm a, Superintendent in the office of the Punjab Nurses Registration Council-Payment of the gratuity etc, thereof.

Reference your letter No. PNRC/84/823, dated 5th April, 1984, on the subject cited above.

2. Govt. observe that Sh. Roshan Lal Sharma was taken on deputalion for a period of two years by Punjab Nurses Registration Council. His permanent absorption in the PNRC without the prior consent of the Board of Ayurvedic and Unani System of Medicine, Punjab was not regular, particularly when he was borne on the strength of Ayurvedic Board. However, as the Board of Ayurvedic and Unani System of Medicines, Punjab has now agreed to the absorption of the official in the Punjab Nurses Registration Council, the benefit of gratuity etc. will be paid to him by the PNRC if he retired from this organisation.”

3. It may be observed here that the Board, vide communication dated 9.3.1984 addressed to the Registrar of the Council had stated that in fact prior approval regarding the absorption of the petitioner should have been taken from the Board. Be that as it may, they had no objection to the petitioner’s absorption but the Board will not be responsible regarding the payment of leave, salary, gratuity etc. It seems that it was on the basis of this letter that communication dated 27/30.4.1984 from the Government was addressed to the Registrar of the Council which has already been reproduced above.

4. There were no statutory rules governing the conditions of service of the employees of the Council and Draft Rules were issued by it and were sent to the State Government for its approval. Rule 18 of the Draft Rules pertaining to the gratuity, which was framed by

the Council, reads as under:-

“Every employee shall be entitled to gratuity equal to one month’s salary last drawn by him at the time of ret iremenl for each completed year of his total service under the Council or other similar department.”

5. The Council, vide resoluiion passed in its meeting held on 19.11.1992 on the agenda item “Service Conditions of employees of Punjab Nurses Registration Council”, resolved as under :-

“The Council has already approved the conditions of services of the Employees of the Council and the same have been sent to the Govt. for conformation and publication in the Gazette since long. The Govt. has not been able to confirm the Regulation, so the Council unanimously resolved that the employees of the Council shall avail all the benefits as prescribed by the Council in the said regulations alongwith other benefits given by the Govt. to its employees of the same status.”

6. The petitioner retired from service of the Council on 31.1.1997 on attaining the age of superannuation. The Government granted approval to the Draft Rules by making some changes and the rules were published in the Government Gazette on 19.8.1997, from which date these rules came into force. Rule 16 of 1997 Rules, which were promulgated on 19.8.1997, reads as under (relevant portion) :-

“Every employee shall be entitled to gratuity as per Government instructions on the subject issued from time to time.”

7. As per Rule 6.16-A of the Punjab Civil Services Rules, Volume II, on superannuation, the employee of the Punjab Government is entitled to 15 days salary for each completed year of service subject to maximum of 16monthsand 15 days, as gratuity. The petitioner has been paid the gratuity by the Council as per Rule 6.16-A of Punjab Civil Services Rules, Volume II. His service has been counted in the Council for this purpose from 16.10.1961 to 31.1.1997 and since 15 days for each completed year of service is more than 16 months and 15 days, the petitioner has been paid the gratuity equivalent to the salary for 16 months and 15 days.

8. The case of the petitioner is that he was entitled to the gratuity as per the Draft Regulation 18 (supra), which was duly adopted by the Council to be followed till those were approved by the Punjab Government. Since, according to the learned Counsel, the petitioner had retired priorto the promulgation of the 1997 Rules (supra), he would be governed by the Draft Regulations duly adopted by the Council and not by the 1997 Rule (Rule 16 read with Rule 6.16-A of the Punjab Civil Services Rules, Volume 11). On the other hand, the case of the respondent-Council is that Rules having come into force, the petitioner’s case would be covered by the Rules and not by the Draft Rules, which were subject to the approval of the State Government.

9. We may observe here that so far as the present case is concerned, there is no dispute as to who is to pay

the gratuity as per Annexure P-5 dated 27.4.1984 (supra). His the Council which is to pay the gratuity. It is further nol in dispute now as to what is the starting point for reckoning the service of the petitioner for purposes of gratuity. It is from 16.10.1961, as has even been taken by the Council for reckoning the period for releasing the graiuity. The only dispute to be determined by us is whether the Draft Rules of the Council would be applicable to the petitioner’s case or the rules promulgated on 19.8.1997 would coverthe case of the petitioner.

10. It is now well settled that in the absence of statutory Rules, the service conditions can be governed by executive instructions, draft rules, if duly adopted and approved by the employer till they get the shape of statutory rules. In this case, there is a conscious decision by the Council dated 19.11.1992 (supra) to follow the Draft Rules till they were approved by the State Government. The petitioner had retired on 31.3.1997 i.e. prior to the promulgation of the Rules which were approved by the State Government by making some changes in the Draft Rules. The service conditions of the petitioner, on his date of retirement, would be governed by the Draft Rules duly adopted by the Council on 19.11.1992 vide Annexure P-8. In these circumstances, the petitioner would be entitled to the gratuity from the Council to the extent of one month’s salary for each completed year of service from 16.10.1961 to 31.1.1997.

11. We allow the writ petition in the above terms and quash the order Annexure P-13 dated 5.6.1998 passed by the Registrar of the Council and direct the Punjab Nurses Registration Council-respondent No.3 to release the gratuity as aforesaid (after deducting the gratuily already paid) within a period of three months of the receipt of the copy of this order.

Copy of this order, attested by the Special Secretary of the Court, be given to Sh. V.K. Kataria, counsel for respondent No. 3 for onward transmission to the concerned quarters.

12. Petition allowed.


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