IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 7095 of 2010 Date of Decision : May 25, 2011 Bhupinder Singh Gill Petitioner Versus Secretary HPSEB Ltd. and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Surender Sharma, Advocate. For the respondents : None present for respondents. Justice Sanjay Karol, J. (Oral) Petitioner has prayed for the following reliefs:- “(i) That the impugned Annexures- PH and PL dated 24.4.2010 and 16.9.2010 may kindly be quashed and set-aside; (ii) that the respondents may kindly be directed to pay the petitioner, the arrears of salary as per the pay fixed vide Annexure-PC and also to calculate and disburse the retiral benefits and pension to the petitioner as per the pay fixed vide Annexure-PC alongwith the corresponding revision from time to time; (iii) that the entire record pertaining to the case of the petitioner may also be called for; and Whether reports of Local Papers may be allowed to see the judgment? 2 (iv) any other relief as may be deemed just and proper keeping in view the facts and circumstances of the case may also be granted in favour of the petitioner.” 2. Inspite of several opportunities reply has yet not been filed by the respondents. Notice in the petition was issued on 30.11.2010 and reply was to be filed within two months. On 8.3.2011 petition was admitted in the presence of the learned counsel for the respondents and last opportunity afforded to file reply. On 4.5.2011 none appeared for the respondents when by way of indulgence last opportunity was afforded to the respondents to file reply. The orders of this Court have not been complied with. Today none has appeared for the respondents in the Court. This is a second round of litigation. 3. Aggrieved of the order dated 24.4.2010 (Annexure PH) whereby the respondents were seeking to re-fix the petitioner’s pay to his detriment, petitioner filed CWP No. 2863 of 2010 before this Court in which the following order was passed on 24.7.2010:- “2. The petitioner has superannuated from service on 31.7.2009. However, the benefits due to him have not so far been disbursed. It is seen from the reply that there was a dispute as to the fixation of the pay of the petitioner in the year 1999. According to the learned counsel for the respondent-Board, the verification of the records was done at the time of fixation of the pension and the pensionary benefits. We are afraid that the contention cannot be appreciated. In the establishment like that of the respondent, there has to be periodical audit and in case any 3 mistake had crept in, the same should have been corrected at the appropriate stage. It is seen that the impugned Annexure PH, order is passed one year after the retirement of the petitioner and that too without notice to him. That conduct cannot be justified. Therefore, we set aside Annexure PH, office order dated 24.4.2010. In case the pay is to be refixed, the same shall be done only with notice to the petitioner and that liberty has to be exercised, if so advised within a period of two months from today and if not it shall be taken that the respondent-Board has dropped the steps for the re-fixation. In any case, we make it clear that in view of the long delay, even assuming that there was a mistake in re-fixing the pay, there shall be no recovery in that regard. 3. The petitioner has retired on 31st July, 2009. There is no case for the respondent-Board that the delay in settlement of the pensionary benefits due to the petitioner has occurred on account of any mistake on the part of the petitioner. Even for verification of the service records, it is seen that the respondent-Board has taken about nine months. The undisputed portion could have been disbursed. We find that despite the interim order dated 2.6.2010, the undisputed amount has not been disbursed. Therefore, the petitioner is justified in staking the claim for interest on pension and pensionary benefits. Accordingly, the undisputed portion of the pension and pensionary benefits shall be disbursed to the petitioner within a period of one month from today along with 6% interest from 1.1.2010 till the date of disbursement. This shall be done within a month on production of a copy of this judgment. 4. The writ petition is disposed of, so also the pending applications, if any.” 4 4. Subsequently the respondents issued show cause notice dated 20.8.2010 (Annexure PJ) which was duly replied by the petitioner in terms of Annexure-PK. 5. The respondents have now passed order dated 16.9.2010 (Annexure PL) the operative portion of which reads as under:- “… AND WHEREAS the Hon’ble High Court of HP at Shimla while disposing off the petition vide its judgment dated 24.7.2010 has granted liberty to the respondents-HPSEB to proceed in the matter in accordance with law. AND WHEREAS the matter was referred to the F&A Wing HPSEB Ltd., Shimla-4 whose observations are as under:- “However in the event of re-fixation of the pay, the recovery of over payment due to such re-fixation of pay from 1.1.1996 to date will not be effected”. AND WHEREAS the said Er. Bhupinder Singh Gill, JE (retired as Sr. Executive Engineer) was served with a Show Cause Notice bearing No. HPSEB: CE(MM)/E-6/2010-9020 dated 21.8.2010 to show cause as to why the office order dated 24.4.2010 be not effected and finalized. AND WHEREAS the said Er. Bhupinder Singh Gill, JE (retired Sr. Executive Engineer), submitted his reply to the Show Cause Notice vide letter No. NIL dated 31.8.2010. WHEREAS remaining retirement benefits has been released to the petitioner by the F&A wing on 29.07.2010 & interest there upon has also been paid vide cheque no. 641426 dated 20.08.10 in the follow up of the instructions of High Court. AND WHEREAS the contentions as raised by the said Er. Bhupinder Singh Gill, JE (retired Sr. Executive Engineer), have been considered carefully with due application of mind. AND WHEREAS the said Er. Bhupinder Singh Gill, JE (retired Sr. Executive Engineer) had requested for stepping 5 up of his pay mainly against one Sh. Hans Raj Sharma, JE (Now assistant Engineer) and other Junior Engineers, Junior to him and had prayed for stepping up of his pay equal to the pay of Sh. Hans Raj Sharma, JE (Assistant Engineer) and other Junior Engineers Junior to him. AND WHEREAS difference in the pay of Sh. Bhupinder Singh Gill, JE (retired Sr. Executive Engineer) and Sh. Hans Raj Sharma, JE (now Assistant Engineer) is on account of exercise of option by the said Sh. Bhupinder Singh Gill, JE(retired Sr. Executive Engineer) and that other orders/instructions cited by him are neither applicable nor attracted in the facts and circumstances of the case in as much as the said orders/instructions stand already considered and taken care of by the competent authority while objecting to his pay fixation. For from aforesaid reasons the re-fixation made vide order dated 24.4.2010 does not warrants any interference and the claim made by Er. Bupinder Singh Gill is rejected being devoid of merits. NOW, THEREFORE taking into account all the facts and circumstances of the case, in totality the office order dated 24.4.2010 is hereby made final. Ordered accordingly.” 6. In my considered view there is total non application of mind on the part of the respondents/authorities. The contentions raised by the petitioner in his reply were neither adverted to nor considered/dealt with in the impugned decision. That apart, order dated 24.4.2010, as now stands affirmed in the impugned order was actually quashed by this Court in terms of its judgment dated 24.7.2010 (Annexure-PI). Therefore the same could not have been affirmed. 6 7. Consequently, without entering into the merits of the matter, on this short ground alone, Annexure-PL is quashed with a further direction to the respondents/authorities to pass a fresh order by taking into account not only the directions issued by this Court but also the contentions raised by the petitioner. Needful shall be positively done within a period of two months from the date of receipt of a copy of this judgment. Needless to add, petitioner shall be heard before passing the order. The reasons passed by the authorities while deciding the case shall be supplied to the petitioner. 8. Petition allowed with cost quantified at ` 2500/- (rupees two thousand five hundred only). (Justice Sanjay Karol), Judge. May 25, 2011 (PK)