REGULAR SECOND APPEAL NO.4528 OF 2009 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 07, 2010 Punjab State Tubewell Corporation Ltd. .....Appellant VERSUS Jagir Singh and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Amit Singh, Advocate, for the appellant. Mr. Mohit Garg, Advocate, for respondent No.1. **** RANJIT SINGH, J. Punjab State Tubewell Corporation (hereinafter referred to as “Corporation”) has filed this appeal to impugn the judgment and decree passed by the District Judge, Fatehgarh Sahib. The issue involved is about the rights of respondent-plaintiff to grant of pension for the service rendered by him with the Corporation, though the Corporation has no scheme to grant pension. The claim for pension is made on the ground that the respondent-plaintiff had earlier served with the Punjab Government before he was shifted to the Corporation REGULAR SECOND APPEAL NO.4528 OF 2009 (O&M) :{ 2 }: and as such, had made a claim that his entire service with the Government and the Corporation be counted for the purpose of pension. The respondent-plaintiff has admittedly been granted pension for that part of service, which he has rendered with the Punjab Government. Respondent-plaintiff was appointed as Tubewell Operator by Punjab Government on 22.9.1958. He has retired from the service on 28.2.1994. In the year 1993, his services were shifted to the Corporation, when the Corporation was so formed. His grievance in the suit was that the Punjab Government had been deducting G.P.Fund from his salary, which was transferred to Corporation but not paid to the plaintiff, when he was transferred to the Corporation. This amount as such, was retained illegally and was paid to him at the time of his retirement on 2.5.1997. No interest was paid on this amount and accordingly interest at the rate of 12% per annum is claimed on this amount. As per the respondent-plaintiff, he was not released his proper gratuity amount. Contention is that he was regular employee of the Irrigation Department, but was wrongly shown as work charge employee from 22.9.1958 to 31.9.1965. Some part of his service was also not taken into account on the ground that the same was not verified, which has effected his pension and gratuity. He accordingly made the claim in this regard in the suit. In the written statement filed, the appellant had contested the suit, claiming that the civil Court has no jurisdiction to entertain the suit, which was said to be time barred and bad for non-joinder and mis-joinder of necessary party. On merits, it was pleaded that REGULAR SECOND APPEAL NO.4528 OF 2009 (O&M) :{ 3 }: the plaintiff was appointed as work charge employee and was retrenched on 9.12.1983, when the Corporation came into existence. The respondent-plaintiff then was given appointment in the Corporation on 12.12.1983. It is averred that respondent-plaintiff is not entitled to any interest on the G.P.Fund and that he has already been paid a sum of Rs.87,000/- towards gratuity by the Corporation. It was also stated that his pension had rightly been fixed and his service in the Corporation was not pensionable one. The Trial Court partly decreed the suit of the respondent- plaintiff by granting him enhanced pension and gratuity by treating his service from 22.9.1958 to 28.2.1994 as a regular service without any break. Against this judgment, the Corporation filed an appeal. Respondent-plaintiff also filed an appeal, claiming interest on delayed payment of G.P.Fund, gratuity and leave encashment. The first Appellate Court modified the judgment and decree passed by the Trial Court and respondent-plaintiff was held entitled to interest on the delayed payment of gratuity, leave encashment @ 12% per annum from the date of his retirement till the date of actual payment. He was also held entitled to interest on amount of his provident fund at the same rate alongwith cost of the appeal. The Corporation has, thus, filed this Regular Second Appeal. Counsel appearing for the appellant contends that the Courts are totally misconceived in granting the pension to the respondent-plaintiff for the entire period of his service with the Punjab State as well as the Corporation and has failed to notice that the service rendered with the Corporation is not a pensionable service. As per the counsel, the respondent-plaintiff could not have been REGULAR SECOND APPEAL NO.4528 OF 2009 (O&M) :{ 4 }: allowed pension for the service rendered by him with the Corporation and in this regard has referred to the decision of this Court in Civil Writ Petition No.1292 of 1997 (The Punjab State Tubewell Operators Association Vs. State of Punjab and others), decided on 9.12.2008. This precise question was under consideration before this Court in the above noted case. It is noticed in this case that when the services of the Tubewell Operators and the mechanical staff were terminated and they were paid retrenchment compensation, various round of litigation then followed. The matter finally reached before the Hon'ble Supreme Court and vide decision reported as Gurmail Singh and others Vs. State of Punjab, JT 1991 (1) SC 351, it stands settled. The employees of the Corporation were held entitled to add their service in the Government to the length of their service in the Corporation for the purpose of computation of their salary and retirement benefits. Having referred to the judgment of the Hon'ble Supreme Court, this Court then considered the claim of pension of the employees serving in the Tubewell Corporation. It is noticed that the employees of the Corporation are not getting any pension as they are being paid the contributory provident fund. Accordingly, this Court has upheld the decision of the Government, whereby State Government has decided to grant the pension for the period of service rendered in the Government and all the employees of the Corporation would be deemed to have retired on 9.12.1983. Their contribution in the provident fund is to be transferred to the account of the Corporation and from 9.12.1983, no pension is payable but the REGULAR SECOND APPEAL NO.4528 OF 2009 (O&M) :{ 5 }: benefit of contributory fund is extended to the employees. Thus, the pensionary benefits have been extended to the employees till the date of their service with the Government and thereafter they are entitled to the benefit of contributory provident fund scheme. This decision was approved by this Court in The Punjab State Tubewell Operators Association (Supra), and would not call for any further discussion. This view has been upheld by the L.P.A Bench, when the L.P.A filed by the employees was dismissed on 1.2.2010. In view the above noted legal position, the decision under appeal, whereby the respondent-plaintiff has been allowed pension for the entire period of his service can not be sustained. The counsel appearing for the respondent-plaintiff, however, still made a valiant attempt to say that the respondent- plaintiff would be entitled to pension for the entire period of his service on the ground that his case is distinguishable as he was not a work charge employee but was a regular employee. In my view, that would also not make any difference because the service rendered in the Corporation is not a pensionable service and the respondent- plaintiff never challenged his retrenchment, which took place in the year 1983 to seek continuity of his service being a Government employee. There is nothing on record to show that the respondent- plaintiff continued to be the employee of the State Government and his service in the Corporation is a borrowed one. Accordingly, the submission as made by the counsel can not be accepted and is, therefore, rejected. However, there is substance in the plea of the counsel when he contends that the grant of interest on the delayed payment REGULAR SECOND APPEAL NO.4528 OF 2009 (O&M) :{ 6 }: was rightly allowed. Submission by counsel for the appellant that the Courts were not justified in granting interest on the G.P.Fund amount from the year 1983 to the date of payment in 1997 on the ground that this amount became due for payment only on retirement of the respondent-plaintiff can not be accepted. Once, the appellant pleads that the earlier service of the respondent-plaintiff came to an end and he was employed in the Corporation, which is not a pensionable service, then the appellant was not justified in withholding the amount of G.P.Fund from the date of appointment of the respondent-plaintiff with the Corporation. The amount of G.P.Fund, thus, remained with the Corporation from 1983 onwards and as such, deserves to be paid to the respondent-plaintiff with interest as he was deprived of the use of this amount for all this while. Accordingly, no case for interfering in the grant of interest on this amount is made out. Otherwise also, the amounts of gratuity and leave encashment were released with a considerable delay and were paid to the respondent- plaintiff finally in the year 2002. There is no justification forthcoming for the delayed payment of these amounts and the Courts are justified in directing payment of the interest on the said amounts as has been allowed. No case for interference in the same also is made out. As a result, the Regular Second Appeal is partly allowed. It is held that respondent-plaintiff would not be entitled to pension by counting the service rendered by him in the Corporation and he would be entitled to pension for the service rendered by him in the Punjab Government. The substantial question of law in regard to right of an employee to earn pension for the service, which is not REGULAR SECOND APPEAL NO.4528 OF 2009 (O&M) :{ 7 }: pensionable one arises in this case and it is answered as noted above. Qua the remaining part, no case for interference is made out. Fresh decree sheet be prepared by the Registry of this Court in the light of observations made above. May 07, 2010 ( RANJIT SINGH ) khurmi JUDGE