IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
(1) R.S.A. No. 1869 of 2005
.....
State of Haryana and others.
....... Appellants through Shri
O.P.Sharma, Additional
Advocate General,
Haryana.
Versus
Risala Ram Saini.
....... Respondent through Shri
J.C.Verma, Senior Advocate
with Ms.Meenakshi
Verma,Advocate.
(2) R.S.A. No. 3311 of 2005
.....
Risala Ram Saini.
....... Appellant through Shri
J.C.Verma, Senior Advocate
with Ms.Meenakshi
Verma,Advocate.
Versus
State of Haryana and others.
....... Respondents through Shri
O.P.Sharma, Additional
Advocate General,
Haryana.
Date of Decision: 27.01.2009
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
R.S.A.No.1869 of 2005
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....
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This judgment will dispose of the above-mentioned two
Regular Second Appeals which have been directed against judgment and
decree dated 4.4.2005 passed by the District Judge, Chandigarh (hereinafter
described as `the First Appellate Court’) vide which the appeals preferred by
the plaintiff and the defendants against the judgment & decree dated
15.11.2003 of the Civil Judge (Junior Division), Chandigarh (referred to
hereinafter as `the trial Court’) were dismissed.
Plaintiff-Risala Ram Saini filed a civil suit seeking his retiral
benefits, which, according to him, were wrongly withheld by the
functionaries of the State of Haryana.
If the pleadings of the parties are to be seen, there is a complete
convergence of the factual aspect of the matter.
The plaintiff served as a Clerk in Private Aided School, namely,
Janta High School, Kaul,District Kaithal, with effect from 12.10.1968 till
31.5.1990 when the said school was taken over by the State Government.
He, thereafter, served in that school till the time he retired from service on
30.11.1997. Prior to his joining Private Aided School, he was in government
service as Clerk and had served in Government High School, Gagsina,
District Karnal from 30.8.1965 to 3.8.1966 and in Government High
School, Rajound, District Karnal, from 12.9.1966 to 9.10.1968. It was the
case of the plaintiff that after retirement, he was entitled to pension, gratuity
R.S.A.No.1869 of 2005
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and salary of 300 days on account of leave encashment, which was denied
to him. It was his pleaded case that he was entitled to these benefits if the
period of service rendered by him in Private Aided School was counted.
In their written statement, the defendants – State of Haryana
and its functionaries, denied the claim as set up by the plaintiff by pleading
that the period of service rendered by him in a Private Aided School could
not be taken into consideration for the purposes of retiral benefits.
Both the parties went to trial on the following issues:-
1. Whether the plaintiff is entitled to the declaration as prayed
for?OPP
2. Whether the plaintiff is entitled to mandatory injunction as
prayed for?OPP
3. Whether the suit is not maintainable?OPD
4. Whether the plaintiff is estopped by his own act and conduct
to file the present suit?OPD
5. Whether the suit is within limitation?OPD
6. Relief.
The trial Court, while determining the controversy, held that the
plaintiff was entitled to the benefit of pension, but declined his prayer in so
far as the claim of gratuity and leave encashment etc. was concerned as it
was belated and beyond the period of limitation.
Dis-satisfied with the findings recorded by the trial Court, both
the plaintiff and the defendants filed separate appeals which were dismissed
by the First Appellate Court.
R.S.A.No.1869 of 2005
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This has resulted in the instant Regular Second Appeals as both
are disgruntled with the findings recorded by the Courts below.
Learned State counsel contended that the plaintiff was not
entitled to the benefit of pension and the service rendered by him in the
Private Aided School prior to its being taken over by the government in the
year 1990 could not be considered for reckoning the same for grant of
pension and other benefits. Reliance was placed on Chander Sain Versus
State of Haryana and others, 1994(1) S.C.C. 750 and Bikram Singh Versus
State of Punjab, 1996(1) S.C.T. 161 (P&H).
It was contended with reference to paragraph 4 of the judgment
of the Apex Court in Chander Sain’ case (supra) that the plaintiff was not
entitled to the benefit of service rendered by him in the Private Aided
School. The relevant observations made by their Lordships in the said
paragraph are as under:-
“Similarly in the matter of pension, we find that the staff of the
college before it was taken over were not entitled to pension
but were having provident fund by way of retirement benefit.
The appellant is, therefore, entitled to claim provident fund
benefit for the period of service rendered by him prior to the
taking over of the college by the State,and for the period
subsequent to the said take-over, he is entitled to pension in
accordance with the service rules of the State.”
In so far as the judgment in Bikram Singh’s case (supra) upon
which reliance was placed by the Courts below while granting the benefit of
R.S.A.No.1869 of 2005
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gratuity etc., is concerned, learned State counsel contended that the
petitioners in that case were working as teachers in the schools run by
Local Bodies/ District Boards which were statutory in nature and, therefore,
the same could not be compared with the case in hand as in the instant case,
it was a Private Aided School having no concern with any District Board or
Local Body. It was then contended that the findings recorded by the Courts
below are erroneous.
On the other hand, learned counsel for the plaintiff has
contended that the pension which has been ordered to be paid to the
plaintiff by the Courts below is perfectly justified as the service rendered by
him in the Private Aided School had to be reckoned for the purpose of
grant of pension and other retiral benefits. Reliance was placed on Amarjit
Kaur versus State of Punjab through Secretary, Higher Education,
Punjab,Chd., 1995(1) S.C.T. 449 (P&H).
It was next contended that the statutory benefits, such as the
gratuity and leave encashment, also had to be granted in accordance with
the existing rules and the findings of the Courts below that the claim of the
plaintiff in that regard was beyond the period of limitation is erroneous.
Learned counsel for the plaintiff further contended that the
statement of DW1-Shamsher Singh Jang Bahadur revealed that the
functionaries of the State Government themselves had been considering the
matter after the year 2000 and, therefore, the suit filed in the year 2002
could not be said to be belated. In any eventuality, there was no order
which was passed by the functionaries of the State Government from where
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it could be said that the period of limitation would commence.
Lastly, it was contended that the retiral benefits are not in the
nature of bounty and the State is under a bounden duty to release the same
to an employee on his retirement from service. Reliance was placed on
Chander Sain Versus State of Haryana and others (supra).
I have thoughtfully considered the rival contentions and have
perused the whole record.
The foremost question to be considered is as to whether the
plaintiff is entitled to the grant of pension etc. by counting the service
rendered by him in the Private Aided School prior to its being taken over by
the State Government. The clincher in this issue would be the case of an
employee, who was similarly situated as the plaintiff and who was
concededly granted the benefits by the defendants.
DW1- Shamsher Singh Jang Bahadur, Head Master,
Government High School, Kaul, Kaithal, who was produced as a witness by
the defendants, testified that one Ram Sarup, who was similarly placed as
the plaintiff, was granted the retiral benefits by counting his service
rendered in a Private Aided School and that the matter went up to the Apex
Court by way of a Petition for Special Leave to Appeal and the grant of
benefits to him was approved by dismissing that petition which was
preferred by the State Government.
During the course of hearing, learned counsel for the plaintiff
produced a copy of judgment dated 20.9.1996 in R.S.A. No.2224 of 1996
which was filed in the case of above said Ram Sarup. While dismissing the
R.S.A.No.1869 of 2005
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aforesaid appeal filed by the State of Haryana, a learned Single Judge
placed reliance on the Division Bench judgment in Amarjit Kaur’s case
(supra) and it was held that the service rendered by an incumbent in a
Private Aided School before its take-over by the State Government was to
be considered for grant of pensionary benefits.
Therefore, there is little hesitation to hold that the findings
recorded by the Courts below on this aspect need to be affirmed. Denial of
this benefit to the plaintiff would be perpetuating the discriminatory attitude
of the defendants as they can not discriminate between two similarly
situated employees. Such an action necessarily has to be held to be hit by
Article 14 of the Constitution of India.
Since the appeal of the State and its functionaries is confined to
this aspect of the matter, the same essentially has to be dismissed.
The next question that is to be considered is as to whether the
plaintiff is entitled to the benefit of gratuity and leave encashment which
was declined to him on the ground of it being barred by limitation.
A perusal of the testimony of DW1-Shamsher Singh Jang
Bahadur shows that no decision on the issue of payment of gratuity etc. to
the plaintiff was taken till May,2000 and that some portion of the gratuity
was released to him in March,2002.
The retiral benefits which become due to an employee on his
attaining the age of superannuation are not be treated as a charity by the
employer. It is a part of the life long earning of an incumbent and cannot be
withheld by the employer unless it is justified by cogent reasons.
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The facts of the instant case reveal that the plaintiff retired
from service in the year 1997 and for no apparent reason, the benefits were
withheld up to the year 2002 when only a part of the gratuity was released
to him. He was also constrained to file a suit in the year 2002 for the
release of such benefits which cannot be termed to be belated or barred by
limitation for the reason that the State itself conceded to his claim, though
not in entirety in 2002. This itself became the cause of action for the
appellant. The functionaries of the State Government were totally
unjustified in refusing these benefits to the plaintiff, especially when they
were conscious of a decision in Ram Sarup’s case (supra), who was
admittedly an employee similarly situated as the plaintiff and who was
granted the same benefits by considering his previous service in Private
Aided School.
The judgments of the Courts which are handed down, are
meant to illuminate the minds of the various functionaries of the State and
they, while taking a cue from them, have to act as a benevolent employer
and not to sleep over the matter so as to thwart the rightful claims of its
employees, who, after serving them, superannuate.
In the instant case, the findings of the Courts below in the wake
of the statement of DW1-Shamsher Singh Jang Bahadur are, therefore,
totally unjustified in so far as they deny the benefit gratuity etc. to the
plaintiff and are liable to be set aside.
Therefore, the appeal of the plaintiff, being R.S.A.No.3311 of
2005, raises the following question of law:-
R.S.A.No.1869 of 2005
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“(i) Whether the benefit of gratuity and leave encashment
could be denied to the plaintiff on the ground of delay and
laches when no order was passed warranting commencement of
the period of limitation?
(ii) Whether the grant of benefits to one similarly situated
employee while denying the same to another employee is
discriminatory and hit by Article 14 of the Constitution of
India?”
On the basis of the discussion made above, I am of the
considered opinion that in view of the detailed facts as narrated in the
foregoing paragraphs, the benefit of gratuity and leave encashment could
not be withheld from the plaintiff and the observation of the Courts below
that the prayer in this regard was made belatedly is incorrect.
The questions of law, as aforesaid, are answered in favour of
the plaintiff in the foregoing discussion.
In the result, R.S.A.No.1869 of 2005 is dismissed and
R.S.A.No.3311 of 2005 is allowed and it is directed that the benefits of
gratuity and leave encashment shall be paid to the plaintiff along with
interest at the rate of 6% per annum from the date of the suit till the date of
actual payment, by counting his service rendered in the Private Aided
School.
January 27,2009 ( Mahesh Grover ) "SCM" Judge