LPA No.202 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Decided on : 21.01.2009 Uttar Haryana Bijli Vitran Nigam ....Appellant versus P. C. Dewan & another ....Respondents CORAM:- HON'BLE MR. JUSTICE UMA NATH SINGH HON'BLE MR. JUSTICE A. N. JINDAL Present:- Mr. B. S. Rana, Advocate, for appellant. Mr. Sanjeev Gupta, Advocate, for respondents. UMA NATH SINGH J. (ORAL) C.M.No.163 of 2009 Reply to application under Section 5 of the Limitation Act, filed on behalf of respondent No.1, is taken on record. C.M. No.718 of 2008 On due consideration of reply and for the reasons mentioned in the application, it is allowed and , thus,74 days' delay in filing the appeal is condoned. LPA No.202 of 2008 This LPA arises out of a judgment dated 15.11.2007 passed by a learned Single Judge in CWP No.18776 of 2001, quashing the impugned order dated 27.12.1999 whereby the respondent No.1 (petitioner in civil writ petition) was retired from the post of Director of Board (Admn.) in the Uttar Haryana Bijli Vitran Nigam Ltd. w.e.f. 31.12.1999 on attaining the age of superannuation i.e. 58 years. It appears that while serving as LPA No.202 of 2008 2 General Manager (HR & Admn.), the writ petitioner was given a tenure appointment for two years as Director (Admn.) in the Board of Directors with retrospective effect from April, 1999, but prior to that, a decision to retire him on attaining the age of superannuation, as aforesaid, was already taken on 27.12.1999 irrespective of the fact that he was given a tenure appointment for two years. This decision (Annexure P-5) of unilateral change in the terms and conditions of his tenure appointment was questioned in the writ petition. Learned Single Judge after hearing both parties and having placed reliance on a judgment reported in AIR 1992 SC- 1872 (Dr. L. P. Aggarwal versus Union of India and others), held that the tenure of writ petitioner for two years pursuant to appointment in terms of Article 31 (2) of the Articles of Association can not be curtailed without a justifiable reason. Learned Single Judge also repelled the submission of State on the ground of doctrine of pleasure while holding that the terms and conditions are so clear that there is no scope for any ambiguity and, thus, they cannot be circumvented by the condition incorporated in the Article. Learned Single Judge also referred to Article 284 of the Companies Act, 1956, to hold that the procedure prescribed thereunder was not adopted. The impugned judgment and order of learned Single Judge has been questioned by the Uttar Haryana Bijli Vitran Nigam in this LPA, on the ground that the writ petitioner was retired on attaining the age of superannuation and it would have created an anomalous situation, had he been allowed to work as General Manager and Director beyond the age of superannuation. This is also a submission of learned counsel for the appellant-Nigam that after attaining the age of superannuation in January, 2000 by the writ petitioner, an amendment was carried out in the Articles of LPA No.202 of 2008 3 Association w.e.f. 01st February, 2000, whereby the minimum tenure of Director has been deleted. Thus, in any case, the writ petitioner could not have been allowed to hold that post beyond 31st January, 2000. This is also a submission of learned counsel for appellant that the writ petitioner had come up to the post of Director only from his service cadre and he was not appointed directly from outside, thus, he is not entitled to claim more than what would have been admissible to him. Rather the post of General Manager, which he was holding, was upgraded only to grant him further status with a little difference of an additional amount of Rs.250/- more in his salary. Learned counsel for appellant furthermore submitted that if the writ petitioner is allowed to get the benefit for remaining period of 1 year and 4 months, he would be getting pay plus pension, which should not be allowed in the interest of justice. On the other hand, learned counsel for the writ petitioner submitted that this is not the solitary case and there have been instances when serving officers after retirement had been appointed as Directors, therefore, the case of writ petitioner can also be considered for the purpose of granting him benefits in the same terms, and he has fully supported the judgment of learned Single Judge. On due consideration of rival submissions, we do not find any serious infirmity in the impugned judgment which would call for our interference in appeal. The terms and conditions of tenure appointment of the writ petitioner are unambiguous and, thus, he is entitled to claim the pecuniary benefits for his extended tenure of two years from the date so fixed in the letter of appointment. Moreover, we notice that the terms and conditions of his service have been changed and interpreted to his LPA No.202 of 2008 4 disadvantage unilaterally and arbitrarily. Now, coming to the question of pecuniary benefits for the remaining period of 1 year and 4 months, which have been directed by the learned Single Judge, we are of the considered view that it should not exceed the last pay drawn by the writ petitioner on the date of attaining the age of superannuation. Therefore, we modify the impugned judgment to the extent that the writ petitioner would be entitled to get the pay for remaining period of 1 year and 4 months, in the pay scale of the General Manager (HR & Admn.) with other allowances minus pension plus Rs.250/- as special pay, as admissible to a Director in the Uttar Haryana Bijli Vitran Nigam, from the date of his superannuation, i.e., 31.12.1999. His pension would, thus, be calculated only on the basis of the last salary drawn as the General Manager (HR & Admn.) on the date of superannuation as mentioned in Clause-2 of the terms and conditions of his appointment as Director/Administration of the Uttar Haryana Bijli Vitran Nigam. The said Clause reads as: “..2. Pay : He will draw the pay in his own scale of pay plus special pay of Rs.250/- p.m., and other allowances as admissible in UHBVNL from time to time for the above period.....” With the aforesaid limited modification in the impugned judgment, it is hereby affirmed and the LPA is disposed of. ( UMA NATH SINGH ) JUDGE (A. N. JINDAL) JUDGE January 21, 2009 ashish Whether this judgment be referred to Reporter: YES/NO