IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 3595 of 2007 DATE OF DECISION : 28.05.2009 Jagdish Rai Makkar .... PETITIONER Versus Haryana Vidyut Prasaran Nigam Limited and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. Devinder Punia, Advocate, for the petitioner. Mr. Praveen Gupta, Advocate, for the respondents. * * * SATISH KUMAR MITTAL , J. The petitioner has filed the instant petition for quashing the condition imposed in the order of compulsory retirement to the effect that the petitioner shall be entitled for pensionary benefits from the date of passing of the order i.e. 3.7.2006 and not from the order of compulsory retirement i.e. 12.2.1999. In the present case, when the petitioner was working as Assistant Executive Engineer in the office of Sub Division Operation, Model Town, Hisar of the respondent Nigam, he was charge sheeted in the year 1997 on certain allegations. When reply to the charge sheet was not CWP No. 3595 of 2007 -2- found satisfactory, the Enquiry Officer was appointed, who submitted his report on 23.3.1998, in which the petitioner was found guilty of the charges levelled against him. After issuing show cause notice, the petitioner was removed from service vide order dated 12.2.1999. The said order was upheld in appeal. The petitioner challenged the order of punishment by filing CWP No. 10892 of 2002, which was partly allowed by this Court on 20.1.2006, while observing as under :- “Consequently, the writ petition is partly allowed and the order dated 5.12.2005 passed by the Board of Directors of the respondent-Nigam is quashed with the direction to the Board to reconsider the matter as regards the quantum of punishment to be imposed on the petitioner. The quashing of the order of removal from service of the petitioner would, however, not entitle the petitioner to any consequential benefits as the same would depend on the reconsideration process by the Board of Directors of the respondent Nigam and the matter is remitted to as to enable the Board of Directors to follow the procedure from the stage at which the fault has been pointed out and to take action according to law.” In view of the aforesaid order, the Board of Directors of the respondent- Nigam again considered the matter and, taking into account all the facts and circumstances of the case, converted the punishment of removal from service into compulsory retirement with all the pensionary benefits applicable prospectively i.e. from the date of decision taken by the Board of Directors. The petitioner has challenged the condition imposed by the said order on the ground that once the order of removal from service has been CWP No. 3595 of 2007 -3- converted into compulsory retirement, the petitioner is deemed to be considered as retired employee from 12.2.1999 and he becomes entitled for all the pensionary benefits from the date of his compulsory retirement. Therefore, his retiral benefits for pension cannot be ordered to be paid from a subsequent date i.e. from 3.7.2006. It is the case of the petitioner that the condition imposed vide the impugned order is wholly illegal and arbitrary and the petitioner cannot be denied the right to receive the benefit of pension from the date of his compulsory retirement i.e. 12.2.1999. In the written statement, no reason has been given for fixing the date for grant of retiral benefits to the petitioner from 3.7.2006, except that the respondent Nigam has taken a lenient view in view of the decision of this Court and the order of removal from service has been converted into compulsory retirement. It is stated that the punishing authority was fully competent while passing the order of punishment to fix the date from which the petitioner will be given the pensionary benefits. Since in this case, the pensionary benefit has been given from the date of decision taken by the Board of Directors, therefore, it is stated that the said decision is legal and reasonable. After hearing counsel for the parties, I do not find any justification to grant the pensionary benefit to the petitioner from 3.7.2006, particularly when he has been ordered to be compulsorily retired from service with effect from 12.2.1999. On the one hand, the respondents have converted the order of removal from service dated 12.2.1999 into the order CWP No. 3595 of 2007 -4- of compulsory retirement from the same date and on the other hand, the pensionary benefits, admissible to the petitioner, have been ordered to be given to him from 3.7.2006. During the course of hearing, learned counsel for the respondents was asked to refer to any Rule/Regulation or judgment, under which the respondents have taken the decision to grant the pensionary benefit to the petitioner from 3.7.2006. In this regard, learned counsel for the respondents has referred to Clause 4.20 of of the Reckoning of Service for Pension, Volume 2, Part I,, which provides as under :- 4.20 (a) A Government employee who is dismissed, removed or compulsorily retired from public service, but is reinstated on appeal or revision, is entitled to count to his past service. (b) The period of break in service between the date of dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement, and the period of suspension (if any) shall not count unless regularised as duty or leave by a specific order of the authority which passed the order of reinstatement. In my opinion, the aforesaid Rule does not empower the punishing authority to pass the order of punishment of compulsory retirement on a particular date and then to order payment of the pensionary benefits to the employee from a future date. Under this Rule, the punishing authority has been empowered to take a decision with regard to the period of suspension. Such period shall not be counted unless the same has been regularised as duty or leave by a specific order of the punishing authority who passes the order of reinstatement. In the instant case, there is no reinstatement. The order of CWP No. 3595 of 2007 -5- removal from service passed on 12.2.1999 which was converted into compulsory retirement from the same date. After setting aside the order of removal from service, the petitioner was not re-instated. If the respondents would have reinstated the petitioner after setting aside the order of removal from service, then the petitioner could have been considered under deemed suspension and then he was entitled for the subsistence allowance. But when the petitioner has been ordered to be compulsory retired from the date, when the order of removal from service was passed, then he is entitled for all the retiral benefits from the said date, which are available to him being a compulsory retiree. Therefore, the condition in this regard imposed in the order of compulsory retirement is wholly illegal and arbitrary and the same is liable to be quashed. In view of the above, the instant writ petition is allowed and the condition imposed in the order of compulsory retirement to the effect that the petitioner shall be entitled for pensionary benefits from the date of passing of the order i.e. 3.7.2006 and not from the order of compulsory retirement i.e. 12.2.1999, is quashed. The respondents are directed to release all the retiral benefits to the petitioner with effect from 12.2.1999 to 30.7.2006 with interest at the rate of 9% per annum within a period of three months. May 28, 2009 ( SATISH KUMAR MITTAL ) ndj JUDGE