IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.383 of 2007 Date of Decision : April 05, 2010. Smt.Salochan Devi .....Petitioner versus State of Punjab and others .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Ms.Ranjana Shahi, Advocate, Amicus-Curiae, for the petitioner. Ms.Charu Tuli, Sr.DAG, Punjab. Mr.R.S.Sharma, Advocate, for respondent No.4. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- Surya Kant, J. (Oral) The petitioner is widow of late Sh.Dilbag Singh and seeks a mandamus to direct the respondents to grant the arrears of retiral dues and `family pension' to her in lieu of the services rendered by her deceased- husband with the respondents as a Dumper Operator. [2] The petitioner has averred that her husband-late Dilbag Singh worked as a Dumper Operator “during the mid fifties” with the Bhakra Dam when it was being constructed on river Sutlej in Himachal Pradesh as a joint venture of the Central Government and the State of Punjab. Dilbag Singh retired from service on attaining the age of superannuation on C.W.P.No .383 of 2007 2 31.10.1996. No terminal benefits like the Provident Fund, Death-cum- Retirement Gratuity and service pension were paid to Dilbag Singh till his death on 2.2.2003. It appears that according to the respondents, the deceased-employee was not paid the pension for the reason that he had joined as a Dumper Operator in the work-charged capacity at Ranjit Sagar Dam Project on 5.10.1986 and retired on 31.10.1996 after attaining the age of superannuation. It is further averred that the deceased employee remained absent from duty for 583 days, out of which, 475 days were in work-charge capacity and the remaining 108 days were after regularization and after exclusion of the absent period, the `qualifying service' of the deceased-Dilbag Singh remains 8 years, 4 months and 29 days, i.e., less than 10 years' service as required for the purpose of pension under Rule 6.16 A of the Civil Services Rules, Volume-I, Part-I, as applicable to the State of Punjab. [3] The petitioner, on the other hand, contends that her husband was initially employed in the mid fifties when he was 17-18 years old and the respondents were not right in contending that he served the department for a period of less than 10 years. [4] On a perusal of the reply-affidavit as well as the additional affidavits filed on behalf of the respondents, it was felt that the old records have not been traced-out deliberately or otherwise and no proper assistance was being provided to this Court by the Chief Engineer and the Executive Engineer, Ranjit Sagar Dam, Shahpur Kandi, in ascertaining the actual service period of the deceased-employee. It was in these circumstances C.W.P.No .383 of 2007 3 that the order dated 3.3.2010 was passed which reads as follows:- “I have seen the letter dated 26.8.1986. It does suggest that the deceased employee had earlier worked somewhere, may be with the respondents or in some other Department/Wing. The respondents are accordingly directed to trace out the old records of Bhakra Dam, which was a joint venture of the Central Government and the then State of Punjab, so as to find out the nature of services and the duration of the deceased-employee's service prior to his appointment on work-charged/regular basis. In case the entire records are not produced on the adjourned date, Mr.Rajinder Singh, Chief Engineer, Shahpur Kandi shall remain present in Court to explain as to why exemplary costs be not imposed upon him and the other Officers/subordinate staff, besides recommending disciplinary action against them.” [5] In deference thereto, the respondents now claim to have dug out the old records and an additional affidavit of Kishan Chand Bhagat, Executive Engineer,Dam Construction and Spillway Concreting Division, Ranjit Sagar Dam, Shahpur Kandi, has been filed, para-4 whereof reads as follows:- “4. That husband of the petitioner, Sh.Dilbagh Singh, joined in Anandpur Sahib Hydel Project Nangal on 27.12.1981 as Dumper Operator and his services were retrenched on 30.6.1985, copy of discharge certificate is annexed hereith as Annexure R-II. The benefit of one number of retrenchee increment was also given to the petitioner's husband.” (emphasis applied) [6] The discharge certificate (Annexure R-II), appended with the affidavit and issued by the Sub Divisional Officer, Hydel Mechanical Sub Division, Nangal Township, states that the deceased-husband of the petitioner was enrolled in Anandpur Sahib Hydel Project on 27.12.1981 and he worked as such till 3.6.1985 when he was discharged on C.W.P.No .383 of 2007 4 “completion of work”. The discharge certificate discloses that the work and conduct of the deceased-employee was good and he got his salary paid in the regular pay scale. [7] Taking the facts, as disclosed by the respondents themselves, to be correct it cannot indeed be denied that the deceased-husband of the petitioner firstly worked as Dumper Operator w.e.f. 27.12.1981 to 30.6.1985 and thereafter, from 25.10.1986 till he retired on attaining the age of superannuation w.e.f. 31.10.1996. Even if the alleged absence period of the deceased-employee is excluded as per the respondents' case, his actual service period comes out to be more than 10 years. [8] At this stage, reference may also be made to Rule 4.23 of the Civil Services Rules, Volume-II, which reads as follows:- “4.23. In the absence of a specific indication to the contrary in the service record, an interruption between two spells of service rendered under the State Government shall be treated as automatically condoned, and the pre- interruption service shall be treated as qualifying service for pension purposes, except where the interruption has been caused by resignation, dismissal or removal from service or due to participation in a strike, but the period of interruption itself shall, under no circumstances, be reckoned as qualifying service for pension purposes.” (emphasis applied) [9] As noticed earlier, it was the completion of the project which caused interruption in the continuity of petitioner's husband's service, namely, a reason not attributable to him and thus both the services, 'regular' or 'work-charge' are required to be counted together for the purpose of granting pension and other service benefits. C.W.P.No .383 of 2007 5 [10] For the reasons afore-stated, the writ petition is allowed; the deceased-husband of the petitioner is held entitled to the grant of pension and other retiral benefits and the petitioner is further held entitled to the `family pension' w.e.f. 3.2.2003. [11] The respondents are accordingly directed to calculate the arrears of pension to which the deceased-employee was entitled to as well as those of the family pension payable to the petitioner w.e.f. 3.2.2003 and release the same alongwith interest @ 9% per annum within a period of three months from the date of receiving a certified copy of this order. [12] Since the petitioner has been subjected to unwanted harassment at the hands of the respondent-authorities, she is held entitled to the costs of Rs.10,000/- which shall be recovered from the officer/officials who are responsible for not presenting the correct facts regarding the total length of service rendered by the deceased-employee and a compliance report be sent to this Court. [13] The matter does not end here. The petitioner, who is an illiterate old woman, has categorically stated that her husband was initially employed with the Bhakra Dam in the year 1957-58 remained there till it was shifted to Pong Dam built on the Bias River on completion of the Bhakra Dam in the year 1963. She has further averred that on completion of work, the services of her husband were utilized in the Irrigation Department at Hoshiarpur and Garhshankar during the years 1972-78. Thereafter, he was shifted to Thien Dam (presently knowing as Ranjit Sagar Dam) in the year 1978-79, followed by his further deployment in C.W.P.No .383 of 2007 6 Anandpur Sahib Hydel Project w.e.f. 21.9.1983. [14] The respondents are accordingly directed to hold a fact finding enquiry with regard to the services, if any, rendered by the deceased-husband of the petitioner right from 1956 onwards, as noticed above. The said enquiry shall be conducted by a fairly senior officer not below the rank of P.C.S. (Executive Branch) and the Principal Secretary to the Irrigation Department, Government of Punjab, is directed to nominate the said officer forthwith who shall complete the enquiry within a period of four months from the date of receiving a certified copy of this order. The Enquiry Officer shall be obligated to trace-out the employment records and correct particulars of the service(s) rendered by the deceased employee at different times/projects, referred to above and thereafter submit a fact finding report in relation thereto. If it is found that the deceased-husband of the petitioner worked even prior to 27.12.1981, such previous service shall also be taken into account towards `qualifying service' immediately and the pension/family pension admissible to her deceased-husband and the petitioner herself, shall be suitably revised and arrears thereof shall also be paid to her within a period of three months from the date of receiving the fact finding report. [15] The assistance provided by the learned Amicus Curiae is appreciated. [16] Dasti. April 05, 2010 (SURYA KANT) Mohinder JUDGE