Civil Writ Petition No. 7378 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 7378 of 2003 Date of decision: 22.03.2011 Hari Chand ...Petitioner Versus Bharka Beas Management Board and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. S.S. Rana, Advocate, for the petitioner. Mr. Sumeet Abrol, AAG, Punjab for the State. RANJIT SINGH J. This order will dispose of Civil Writ Petition Nos. 7378 of 2003, 4223 of 2005, 2488 & 18308 of 2009, 20546, 21201, 22249 of 2010. The issue involved in large number of writ petitions is about the fate of service rendered by an employee on daily wages basis. Initially one Hari Chand an employee of Bhakra Beas Management Board (in short 'BBMB') had filed CWP No. 7378 of 2003 seeking quashing of order dated 16.09.2002 vide which is prayer to count his service rendered as daily wage employee for the purpose of pension was declined. The Division Bench of this Court, after considering the pleadings, allowed the writ petition and issued direction for counting the service of petitioner, Hari Chand rendered on daily wages towards qualifying service and sanctioned the pension in his favour. The Court further directed that needful be done Civil Writ Petition No. 7378 of 2003 2 within a period of three months from the date of copy of this order. The petitioner was directed to return amount of service gratuity and Death-cum-Retirement Gratuity received by him alongwith simple interest at the rate of 7% from the date of receipt of amount in question till its return to the respondents within a period of six weeks. Respondent/BBMB was directed to make payment of pension to said Hari Chand within the aforesaid period. BBMB filed Special Leave Petition (c) No. 8584 of 2005 before the Hon'ble Supreme Court against the above judgment passed by the Division Bench. Leave to appeal was granted and Civil Appeal No. 8312 of 2009 arising out of the SLP was decided by the Hon'ble Supreme Court on 10.12.2009. The Court after noticing that the Division Bench of this Court while passing the impugned order had relied upon a judgment of Full Bench in the case of Kesar Chand Versus State of Punjab AIR 1988 Punjab 265, has observed that after carefully considering the judgment it was noticed that Rule 3.17 of the Punjab Civil Services Rules (hereinafter referred to 'Rules') was considered in the case of Kesar Chand (supra) and Sub Rule (ii) of Rule 3.17 was held as unconstitutional and struck down. Counsel appearing for the BBMB (appellant before this Court)had drawn the attention of the Hon'ble Supreme Court to Rule 3.17-A to urge that even if the judgment in the case of Kesar Chand (supra) was held to be a correct law, then it would only help the work charged employees on the establishment but would be of no help to daily rated employees. Counsel for the Board has further pointed out that the petitioner was daily rated employee and not the work charge employee and that this question from this angle as projected was not Civil Writ Petition No. 7378 of 2003 3 considered by the High Court. Reference was also made to the fact that these rules were adopted by State of Haryana, which had amended by Rule 3.17-A (iii) by deleting the word 'daily rated service' therefrom. It was observed that such amendment has not been effected in the State of Punjab and the rule continues as it was. All Government instructions referred to, which regulated the counting of adhoc service towards pensionary benefits were subject to certain conditions. On this basis, it was pointed out before the Hon'ble Supreme Court that these questions have not been considered by the High Court and the court had merely proceeded on the basis of law laid down in Kesar Chand's case (supra). The Hon'ble Supreme Court, accordingly, remanded the case back to this Court for reconsideration in the light of observations made but without being influenced by any of the observations, made by the Hon'ble Supreme Court. This court was requested to go into the rules as well as the amendments afresh and decide the question involved. This Court was required to give fresh notice to the parties and to dispose of the matter within a period of six months. That is how the writ petition alongwith other connected cases, has now been listed before this Court. Number of other persons, who were employed on daily wages basis have filed different writ petition Nos. 7378 of 2003, 4223 of 2005, 2488 & 18308 of 2009, 20546, 21201, 22249 of 2010, making the identical prayer that their respective services rendered on that basis are also required to be counted for the purpose of pension. Accordingly, all these writ petitions were ordered to be listed alongwith CWP No. 7378 of 2003 Civil Writ Petition No. 7378 of 2003 4 and remanded by the Hon'ble Supreme Court. Counsel for the parties have made submission and have drawn my attention to number of precedents and also to the amendments, which have been carried out by the State of Punjab to urge that daily wages service is now required to be counted for the purpose of grant of pension and pensionary benefits. Since the issue has now been remanded by the Hon'ble Supreme Court to consider the provisions of Rule 3.17-A, the same may have to be so considered in the light of facts in the petition. The facts in this case have already been noticed by the Division Bench in its order dated 17.01.2009 vide which this writ petition was also allowed. Re-capitulating briefly, it can be noticed that the petitioner was appointed as Mechanic (Diesel) on daily wage basis in May 1991. He served intermittently but was engaged as daily wager till 30.07.1996 continuously. His services were regularized w.e.f. 01.08.1996. He was granted regular pay scale of Rs. 1090- 2130. Ultimately, he retired on 30.06.2002. Thereafter, he made a representation for grant of pension. He, however, was offered gratuity in lieu of pension and an amount of Rs. 26,700/- was released in his favour. He had, therefore, filed this writ petition seeking direction for grant of pension by counting his service rendered as daily wager. Counsel appearing on the side of the petitioners have drawn my attention to notification issued by the Government of Punjab through which instructions were issued for timely preparation and submission of pension cases/submission of application of final payment of GPF etc. Para 6 of these instructions make a provision Civil Writ Petition No. 7378 of 2003 5 for treatment of temporary employees at par with permanent employees in respect of all retiral benefits. Paragraph 6 reads as under:- 6. The temporary employees shall be treated at par with permanent employees in respect of all retirement benefits viz. Retiring, Superannuation, Compensation and Invalid Pensions and Service and Death-cum-Retirement Gratuities.” Paragraph 7 of the instructions then provides that the entire service rendered by an employee as work-charged as also for the service paid from contingencies shall be reckoned towards retirement benefits but subject to certain conditions. Paragraph 7 of these instructions is as under:- 7. The entire service rendered by an employee as work-charged as also the service paid from contingencies shall be reckoned towards retirement benefits provided:- (i)such service is followed by regular employment; (ii)there is no interruption in the two or more spells of service or the interruptions fall within condonable limits; and (iii)such service shall be a full time job (and not part-time or portion of the day). Thus, where any service, which is paid from contingencies then it will reckon towards retirement benefit if such service is followed by regular employment and that there is no interruption in the two or more spells of service or the interruption fall within condonable limits and such service shall be a full-time job and Civil Writ Petition No. 7378 of 2003 6 not part-time or portion of that day. It is on this basis submitted that the daily wage service would now require to be counted for the purpose of pension. Paragraph 3.17-A (i) reads as under: 3.17-A (1) Subject to the provisions of rule 4.23 and other rules and except in the cases mentioned below, all service rendered on establishment, interrupted or continuous, shall count as qualifying service:- (i)Service rendered in work-charged establishment. (ii)Service paid from contingencies: Provided that after the 1st January, 1973 half of the service paid from contingencies will be allowed to count towards pension at the time of absorption in regular employment subject in the following conditions:- (a) Service paid from contingencies should have been in a job involving whole time employment (and not part-time or for a portion of the day). (b) Service paid from contingencies should have been in a type of work or job for which regular post could have been sanctioned, e.g. Malis, Chowkidars, Khalasis, etc. (c) The service should have been one for which the payment is made either on monthly or daily rates computed and paid on a monthly basis and and which thought not analogous to the regular scale of pay should bear some relation in the matter of pay to those being paid for similar jobs being paid for similar jobs being Civil Writ Petition No. 7378 of 2003 7 performed by staff in regular establishment. (d) The service paid from contingencies should have been continuous and followed by absorption in regular employment without a break. (iii)Casual or daily rated service. (iv)Suspension adjudged as a specific penalty,; Note:- In cases where an officer dies or is permitted to retire while under suspension will not be treated as an interruption. (v) Service preceding resignation except where such resignation is allowed to be withdrawn in public interest by the appointing authority as provided in the relevant rules or where such resignation has been submitted to take up, with proper permission, another appointed whether temporary or permanent under the Government where service qualifies for pension. (vi) Joining time for which no allowance are admissible under rules 9.1 and 9.15 of CSR, Volume I, Part I. (vii) If any unauthorised leave of absence occurs in continuation of authorized leave of absence and if the post of the absentee has been substantively filled up, the past service of the absentee is forfeited. (viii) Transfer to a non-qualifying service in an establishment not under government control or if such transfer is not made the competent authority and transfer to service in grant-in-aid school. Civil Writ Petition No. 7378 of 2003 8 (A Government employee, who voluntarily resigns qualifying service, cannot claim the benefit under this Clause) (ix) Removal from public service for misconduct, insolvency, inefficiency not due to age, or failure to pass an examination will entail forfeiture of past service. (2) An interruption in the service of a government employee caused by willful absence from duty or unauthorized absence without leave, shall entail forfeiture of the past service. (3) Willful abstinence from performing duties by the Government employee by resort to pen down strike shall be deemed to be willful absence from duty and shall also entail forfeiture of the past service. As per this paragraph, it is clear that the service, which is paid from contingencies and if continues it shall count as a qualifying service for pension. Not only that even casual or daily rated service is also referred to be as one which shall count as a qualifying service for this purpose. My attention has also been invited to number of precedents, where this issue has been considered in detail by this Court and it is viewed that daily wages or work-charged services prior to regularization is liable to be counted for the purpose of pensionary benefits. Reference in this regard can be made to the case of Kashmir Chand versus Punjab State Electricity Board and others 2005 (4) RSJ 581 where the Division Bench expressed this view. Another Division Bench in CWP No. 18841 of 2007 titled as Civil Writ Petition No. 7378 of 2003 9 Sadhu Singh and others versus State of Punjab and others decided on 25.07.2008 has again considered this issue and after making detailed reference to the provisions of Rule 3.17-A has held that principles incorporated in this rule are based on the Full Bench of this Court in Kesar Chand's case (supra), which has held the field for more than two decades. The Court also observed that following this principle and judgment this Court repeatedly has followed this view in numerous judgments. In case of Beant Kaur V. State of Punjab 2001 (3) SCT 321 and Sher singh V. State of Punjab (CWP No. 6178 of 2001, decided on 24.01.2002) are referred to in this regard. Not only this, the Court has expressed its displeasure by noticing that employees are being forced to approach the Court though the issue has been settled. Relevant observations are as under:- “ We do not feel very happy to notice that such like petitions are presented before us every day. We fail to understand as to how the respondent State and its authorities are dealing such like cases by rejecting the claim of the employees and forcing all regular employees to approach this Court for counting of their work charge, daily wage and ad hoc service as qualifying service. We are daily receiving spate of petitions, which demonstrate complete disregard to the rules. Such an attitude by the respondent State has to be adversely commented and is condemnable. We cannot ignore the fact that there may be many other employees entitled to the relief of pension and other retrial benefits who may not be aware of their Civil Writ Petition No. 7378 of 2003 10 rights and may also not be able to approach this court. Therefore, in the era of globalization the State cannot shirk its responsibility to ensure that all its employees get their dues without forcing everyone of them to seek directions from this Court. In order to evolve some mechanism of ensuring that service rendered by work charged, daily wage basis and ad hoc employees is counted as qualifying service for pension in case they are regularized, we direct that the respondent state may look into the matter and develop a mechanism aimed at avoiding litigation by such employees.” The State of Punjab through the Chief Secretary was directed to take steps to ensure that cases of this nature did not travel to the Court and the rules are complied with. The decision in LPA No. 153 of 2011 titled as State of Punjab and others versus Ram Singh is also placed before me, where this Court found that the issue is covered by the Division Bench judgment of this Court in Sadhu Singh's case (supra). In number of cases, this Court has taken this view while dealing with the case related to State of Haryana. Reference in this regard can be made to Babu Ram versus State of Haryana and others 2009 (2) S.C.T. 522, Mohan Singh versus State of Haryana 1991 (3) S.C.T. 147, Amar Singh versus State of Haryana and others 2006 (2) CurLJ 161, Joginder Singh versus The State of Haryana and others 1998 (1) RSJ 671, T.R. Verma and others versus H.S.D.C. and others 1997 (4) RSJ 244. To conclude, it can be observed that in view of the Civil Writ Petition No. 7378 of 2003 11 precedent and rule position, the service rendered on the daily wage basis is to be counted towards pension and pensionary benefits. The writ petitions are, accordingly, allowed. Since earlier, the petitioner was allowed interest @ 7% from the date the payment was due to the date of payment, it would be fair to follow the same course. The respondents are also directed to calculate the pension payable within a period of two months from the date of receipt of copy of this order. There shall be, however, no orders as to costs. March 22, 2011 (RANJIT SINGH ) rts JUDGE