RSA No.32 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 32 of 2009 (O&M) Date of Decision: August 12, 2009 The Secretary,Municipal Council Palwal ...........Appellant Versus Het Ram Sharma and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Jagdish Manchanda,Advocate for the Appellant. Ms.Maloo Chahal, Deputy Advocate General, Haryana ** Sabina, J. Plaintiff-Het Ram Sharma filed a suit for declaration to the effect that he is entitled for interest @ 18% per annum on delayed payment and part payment of leave encashment for two months amounting to Rs.16,166/- with interest @ 18% p.a. from the due date till date of its payment and mandatory injunction to the respondent department to make payment of interest @ 18% p.a. with all consequential benefits and leave encashment of two months. The Civil Judge (Junior Division) Chandigarh decreed the suit of the plaintiff vide judgment and decree dated 31.8.2006. Aggrieved by the same, defendants preferred an appeal and vide judgment and decree dated 12.8.2008, the learned District Judge, Chandigarh dismissed the same. Hence, the present appeal. The case of the parties, as noticed by the learned Additional District Judge in paras 2 to 4 of its judgment reads as under:- RSA No.32 of 2009 (O&M) 2 2. Briefly stated the facts and circumstances leading to filing of this appeal are that the respondent No.1, who was plaintiff before the lower court, was appointed in Octroi department of Municipal Committee, Palwal on 6.12.1967 and he sought voluntary retirement on 31.3.2000 and he was accordingly relieved. A no due certificate was issued by the Committee. He completed the pension papers in all respects and submitted the same on 20.7.2000 for getting pension. However, the retiral benefits of the plaintiff was not released and he filed Civil Writ petitions No. 18031 of 2001 and then 7425 of 2003 and the Hon'ble Punjab and Haryana High Court ordered that representation of the plaintiff should be decided within stipulated time. It is further averred that the defendants have failed to implement the order of the Hon'ble High Court. Thereafter, the plaintiff issued a legal notice on 23.8.2003 but nothing was done by the appellant or other defendants. Thus, he prayed that he is entitled for interest at the rate of 18% per annum on the delayed payment of gratuity of Rs.97,350/- made on 5.9.2000 and Rs.36,020/- made on 26.2.2002, commutation of pension of Rs.1,73,542/- released on 26.7.2002 and pension amounting to Rs.78,858/- released on 26.7.2002. He also sought release of leave encashment of two months amounting to Rs.16,166/- which has not been paid. Hence, this suit. 3. On notice the defendants No.1 and 2 filed a separate written statement and contested the suit vehemently alleging that the entire benefits were to be paid by the Municipal Council, Palwal RSA No.32 of 2009 (O&M) 3 from pension fund maintained in the office of Directorate of Urban Development, Haryana, Chandigarh. As per rule 4 of the Haryana Municipal Pension and General Provident Fund Rules, 1993, the option for adopting the pension scheme should reach the competent authority within a period of four months from the date of publication of the said rules. The plaintiff retired from Municipal Council, Palwal on 31.3.2000. The pension case was received in the office of these respondents on 18.6.2001. There were many shortcomings in the pension case for which the Executive Officer, Municipal Council, Palwal was directed vide memo dated 4.7.2001 and further reminder dated 8.1.2002 to remove all the shortcomings. After removing the shortcomings, the pension was sanctioned to the plaintiff vide PPO No. 2830 on 5.6.2002. An amount of Rs.2,52,312/- on account of arrears of pension from 1.4.2002 to 31.5.2002 and commutation of pension after deducting less pension share amounting to Rs.88/- had already been sent to the plaintiff. While denying other averments of the plaint, the defendants no. 1 and 2 prayed for dismissal of the suit. 4. Defendant No.4-appellant in his separately filed written statement took the preliminary objections of maintainability of the suit and concealment of facts. On merits, it is averred that the Hon'ble High Court directed the defendants to decide the representation of the plaintiff by passing a speaking order and the same was done. The claims of the plaintiff were found unjustified and time barred. But later no one appeared on behalf of the RSA No.32 of 2009 (O&M) 4 appellant and it was proceeded against ex-parte. Defendant No.3 was, however, given up by the plaintiff, vide order dated 29.9.2004. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the interest at the rate of 18% per annum on delayed payments of retirement benefits as alleged? OPP 2. Whether the plaintiff is entitled to leave encashment of two months amounting to Rs.16,166/- along with interest at the rate of 18% per annum as alleged?OPP 3. Whether the present suit is not maintainable in its present form?OPD 4. Whether the plaintiff has not approached the Court with clean hands?OPD 5. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal deserves to be dismissed. The controversy involved in this case is a short and is to the effect that whether the plaintiff is entitled to claim leave encashment for 300 days or 240 days? In this regard, both the Courts below, after appreciating the evidence on record, have given a finding of fact that the plaintiff is entitled to claim leave encashment of 300 days. Learned Additional District Judge in para 18 of its judgment has observed that it was proved on record that as per resolution No.6 dated 18.1.1999 of the appellant-Municipal RSA No.32 of 2009 (O&M) 5 Council, copy of which was produced on record, the instructions of Haryana Government dated 12.8.1998 increasing the leave encashment from 240 days to 300 days, was adopted by the appellant. Hence, the said finding of fact cannot be interfered with in this appeal. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge August 12, 2009 arya