IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.1490 of 2010 DATE OF DECISION : SEPTEMBER 6, 2010 MADAN MOHAN TALWAR ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. RK Arora, Advocate, for the petitioner(s). Mr. BS Chahal, DAG, Punjab. AJAI LAMBA, J. (Oral) 1. Madan Mohan Talwar, father of deceased employee-Ms.Arun Talwar has approached this Court in writ jurisdiction claiming issuance of a writ in the nature of certiorari quashing the action of the respondents vide which while releasing the death-cum-retiral benefits in respect of his deceased daughter, the last pay drawn has been considered to be Rs.7,220/-, although the deceased employee was drawing Rs.7,440/-, after giving benefit to the deceased of the annual increment to which she was entitled. 2. The facts are not in dispute. 3. Ms.Arun Talwar, unmarried daughter of the petitioner, joined service as a Clerk in the Department of Education, Punjab, on adhoc basis Civil Writ Petition No.1490 of 2010 2 on 17.10.1980. The services of Ms.Arun Talwar were regularised with effect from 1.4.1985. Ms.Arun Talwar proceeded on casual leave with effect from 27.9.2007 to 6.10.2007 and further from 8.10.2007 to 15.10.2007. 4. It seems that Ms.Arun Talwar was sick and, therefore, she proceeded on earned leave from 16.10.2007 to 18.12.2007. During the period the employee was on leave, she became entitled to an increment on account of length of her service on 1.10.2007, which was sanctioned and granted. Under the circumstances, Ms.Arun Talwar was drawing pay of Rs.7,440/-. 5. Unfortunately, Ms.Arun Talwar died on 19.12.2007. The petitioner claims death-cum-retiral benefits in the context of the services of his unmarried daughter, which has been sanctioned, however, the last pay drawn by the employee has been considered to be Rs.7,220/-. The benefit of increment which was sanctioned and granted to Ms.Arun Talwar on 1.10.2007 has been withdrawn. It is further not disputed that the benefit has been withdrawn without giving any opportunity of hearing to the petitioner to explain and justify the claim. 6. Learned counsel for the petitioner has argued that the respondents cannot deny the benefit of increment only because at that point in time the employee was on earned leave in view of Note 5 to Rule 6.19 of Punjab Civil Services Rules, Volume II Part II, (for short 'the Rules'). 7. Learned counsel for the respondent-State has, however, argued that the respondents are relying on Rule 4.9-A Note 1 of the Rules Civil Writ Petition No.1490 of 2010 3 to justify considering the last pay drawn by the deceased employee of Rs.7220/- i.e. without the increment. 8. I have considered the rival contentions. 9. Before proceeding further, the relevant rules are required to be exactly referred. Rule 6.19 of the Rules (relevant portion) reads as under:- “Rule 6.19. The term “emoluments” when used for this purpose shall mean 'pay' defined in rule 2.44 of the Punjab Civil Services Rules, Volume-I, part-I including dearness pay as determined by the orders of the Government issued from time to time which the employee was receiving immediately before his retirement, or the date of his death. Notes 1 to 4 xx xx xx xx Note : 5. - If a Government employee immediately before his retirement or death while in service was on earned leave and earned an increment, which was not withheld, during the currency of the earned leave not exceeding one hundred and twenty days, or during the currency of the leave preparatory to retirement up to one hundred eighty days on full pay or during the first one hundred and twenty days, of any period of earned leave exceeding one hundred and twenty days, such an increment, though not actually drawn shall form part of his emoluments.” 10. Rule 4.9-A of the Rules (relevant portion) reads as under:- “4.9-A. Notwithstanding anything contained in the foregoing rule, the annual increments shall be allowed with effect from the first day of the month in which they fall due under the normal rules regulating increments. Civil Writ Petition No.1490 of 2010 4 Note 1. - The increment of an employee on leave due on the first day of the month will be drawn from the date of resuming his duty on return from leave, because during leave the employee gets leave salary only. xx xx xx xx xx xx xx xx” 11. A perusal of Note 5 to Rule 6.19, in the context of facts of this case referred to above, makes it evident that if a Government employee immediately before death, while in service, was on leave and during that period he/she earns an increment during the currency of leave period, such increment though not actually drawn, shall form part of his/her emoluments. 12. In the case in hand, the employee-Ms.Arun Talwar earned the increment with effect from 1.10.2007 which was sanctioned and granted in view of the admitted fact that she was drawing the salary of Rs.7,440/- before her death on 19.12.2007. In such circumstances, this court is required to consider as to whether Rule 4.9-A Note 1 of the Rules can be invoked by the respondents. 13. A perusal of Rule 4.9-A of the Rules, extracted above, indicates that the increment of an employee who has been on leave would be due on the date he/she resumes duty on return from leave. 14. In the case in hand, Ms.Arun Talwar died while on sanctioned earned leave, on 19.12.2007. The benefit of increment had already been sanctioned and granted to the said employee. 15. I am of the considered opinion that the action of the respondents is liable to be quashed in view of provisions of Note 5 to Rule 6.19 of the Rules, which deals with a specific fact situation wherein an Civil Writ Petition No.1490 of 2010 5 employee who, immediately before his/her death, is on earned leave and during the currency of leave, earns an increment. The case of the petitioner squarely falls within the scope of Note 5 to Rule 6.19 of the Rules. In such circumstances, the respondeats have no right to invoke the provisions of Rule 4.9-A of the Rules. Rule 4.9-A of the Rules could possibly be invoked only in case the employee chooses not to return on duty/resume duty on return from leave. Note 1 to Rule 4.9-A of the Rules would be applicable only if the employee does not resume duty after expiry of leave period. It does not inhere a case wherein an employee dies while on earned leave. 16. Dehors the above, the facts noticed above make it evident that the deceased employee was given an increment with effect from 1.10.2007 and, accordingly, was drawing salary at Rs.7440/-. This continued to be so till her death in December, 2007. The benefit thus given has been withdrawn without giving any opportunity of hearing and, under the circumstances, the action of the respondents is in violation of principles of natural justice and, therefore also, is liable to be struck down. 17. In view of the above, the petition is allowed. It is held that the retiral benefits in lieu of services rendered by Ms.Arun Talwar would be calculated while taking into account the pay of the employee as Rs.7,440/-. 18. I also find that there has been a substantial delay in releasing some of the retiral benefits. The Gratuity was released in the year 2010. Under the circumstances, the petitioner is hereby held entitled to interest at the rate of 9% per annum on Gratuity with effect from 31.3.2008 i.e. the Civil Writ Petition No.1490 of 2010 6 date of payment of some of the retiral benefits. The petitioner would also be entitled to payment of interest at the rate of 9% per annum on the arrears of death-cum-retiral benefits to be paid in the context of enhanced pay, as allowed vide this order. 19. The respondents would be at liberty to fix the responsibility of the officer/official who has caused the delay in release of benefits to the petitioner and recover the amount of interest from the said officer/official. September 6, 2010 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?