HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.19084 of 2009 (O&M) Date of Decision: 03.03.2011 **** Malkit Singh & Anr. . . . . Petitioners VS. Pepsu Road Transport Corporation & Anr. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Vikas Chatrath, Advocate; Mr. Vikas Singh, Advocate; Mr. SS Grewal, Advocate; Mr. RS Chauhan, Advocate; Mr. SS Sisodia, Advocate; Mr. Piyush Bansal, Advocate; Mr. Rajan Bansal, Advocate; Mr. Tajinder Joshi, Advocate; Mr. Achin Gupta, Advocate; Mr. Arun Chandra, Advocate; Mr. MK Bhandari, Advocate; Mr. SS Salar, Advocate; Mr. Anil Malik, Advocate; Mr. RK Arora, Advocate; for the PETITIONER(S) Mr. RS Khosla, Advocate; Mr. Balwinder Singh, Advocate; Mr. Anupam Singla, Advocate; Mr. Sukhjeet Singh, Advocate; Mr. SP Garg, Advocate; Mr. Hitesh Sood, Advocate; Mr. Harsh Aggarwal, Advocate; Mr. GS Gill, Advocate; Mr. GS Walia, Advocate; Mr. Vikrant Pamboo; for the respondent-PEPSU Mr. Sanjay Tangri, Advocate for EPF Commissioner ***** CWP No.19084 of 2009 PRTC.doc - 2 – SURYA KANT J. (ORAL) (1). This order shall dispose of CWP No.16819 of 2008; 9540, 14746, 14868, 15486, 17897, 18533, 18887, 18904, 18925, 19084, 19191, 19269, 19400, 19408, 19504, 19534, 19500, 19511, 19618, 19627, 19635, 19680, 20032, 20331 of 2009; 389, 443, 864, 1188, 1707, 1764, 2772, 3467, 4181, 4218, 5147, 5609, 11383, 12010, 12013, 12024, 12458, 12522, 12820, 12904, 13151, 13345, 13394, 13578, 14152, 14243, 14603, 15003, 15284, 15344, 15546, 15593, 15888, 17114, 17191, 17388, 17531, 17535, 17842, 17881, 17991, 18143, 18136, 19399, 19450, 19580, 19581, 19602, 19802, 19871, 21997 & 22713 of 2010 as the issues involved in these cases are broadly common. Suffice it to mention here that the petitioners are a few retired Officers, Class-III and Class-IV employees of the PEPSU Road Transport Corporation and seek directions for:- i. the payment of pension, Gratuity and other retiral dues; ii. grant of arrears of revised pay scales with effect from 01.01.2006; CWP No.19084 of 2009 PRTC.doc - 3 – iii. grant of revised pensionary benefits in accordance with the revised pay scales; iv. acceptance of their option for the Pension Scheme on refund of the advance amount earlier received by them along with interest; v. grant of Leave Travelling Allowance, Medical Allowance and other incidental service benefits; and vi. grant of interest on the delayed payments. (2). Since a line of writ petitions were filed by the retirees complaining non-payment of pension and other retiral/service dues like Gratuity etc., this Court, took judicial notice of the inaction and issued the following directions vide order dated July 15, 2010:- “……It is accordingly directed that till the retiral dues are paid within three months to all the employees who have retired on or before 31.03.2010, no salary shall be paid to the Managing Director or any other Class-I Officer of the Corporation. The Managing Director of the Corporation, shall file the compliance affidavit, along with an undertaking that in future also the retirees shall be paid their retiral dues within a period of three months of their retirement.” (3). Thereafter on September 20, 2010, the following order was passed :- CWP No.19084 of 2009 PRTC.doc - 4 – “The Managing Director of the respondent- Corporation has filed its affidavit which is taken on record. As per the averments made therein, the Corporation has received an assistance of Rs.10 crore from the State Government which shall be immediately disbursed to the retired employees as per their seniority based upon the dates of retirement. It is further averred in the affidavit that another sum of Rs.10 crore is likely to be received by the Corporation in the month of November, 2010, which shall also be then disbursed amongst the retirees on the same principle. The affidavit undertakes that it is only on receipt of the third instalment of Rs.10 crore, the entire liability qua 818 retirees shall stand discharged. Adjourned to 29.11.2010. Meanwhile, it is directed that a sum of Rs.10 crore already received by the Corporation be disbursed to the retired employees as per seniority based upon the date of retirement within one week…. .” (4). The indifferent and apathetic approach of the Corporation towards its retirees led to the initiation of coercive steps by this Court vide order dated 29.11.2010 which reads as under:- CWP No.19084 of 2009 PRTC.doc - 5 – “Mr. Chatrath, in unison with the other learned counsel representing the petitioners in the connected matters, states that no retiral dues have been paid to the retirees except the one disbursed out of the first instalment of the financial assistance of Rs.10 crores statedly received by the PRTC from the State Government. The respective counsel representing the PRTC in one or the other case, on instructions from an official of the Corporation who is present in Court, do not dispute the fact that no further payments have been made to the petitioners for the reason(s) that the alleged second instalment of Rs.10 crores which was expected to be received from the State Government, is still awaited. The indifferent and apathetic approach of the Management of the Corporation towards its retirees can be gauged by the fact that not a single senior officer, least the Managing Director, is present in Court to give the correct information regarding the efforts, if any, made by them to meet the financial crisis and discharge the legal obligation of providing bare financial assistance to the retirees, who are left in the lurch for want of any other source of survival even after serving the Corporation spotlessly for decades. The casual approach and callousness exhibited by the Management of PRTC, leaves no room to doubt that coercive steps for the recovery of the lawful and legitimate dues of the retirees is the only recourse left with this Court. CWP No.19084 of 2009 PRTC.doc - 6 – Learned counsel for the petitioners seek and are granted time to furnish the details of the immoveable and moveable properties/assets of the respondent-Corporation to be subjected to public auction for the recovery of the subject dues. If the details are sought by the petitioners and/or their counsel under the Right to Information Act, the concerned authorities are directed to supply the requisite information within one week from the date of receipt of such application(s). Post for further hearing on 20.12.2010. Meanwhile and in continuation of the interim order dated 20.09.2010, it is directed that no payment towards TA/DA/sundry charges whatsoever, shall be made by the Corporation to all those Officers to whom payment of salary has already been stayed vide order dated 20.09.2010. Further, no official car/jeep or any other vehicle attached with the officers of the Corporation shall be provided fuel or fuel charges at the Corporation’s expense till further orders.” (5). On 20.12.2010 Sh. R.S. Khosla, Addl. Advocate General, Punjab representing the Corporation filed an affidavit of its Managing Director explaining that the State Government had released Rs.5 crores more in addition to Rs.10 crore already received and besides this an additional amount of Rs.5 crores was also likely to be released shortly which would enable the CWP No.19084 of 2009 PRTC.doc - 7 – Corporation to release the retiral dues of the remaining 123 retirees also. (6). Thereafter and on hearing learned counsel for the parties, the following order was passed on 20.12.2010:- “Having heard learned counsel for the parties at some length and keeping in view the estimated amount to which the Corporation is likely to be entitled to receive from the State Government and also that the respondent Corporation is a wholly State owned and controlled organization, and also keeping in view the fact that about 123 retirees are yet to get their dues to whom the Corporation has promised to pay by 31.03.2011, the State of Punjab is directed to release an additional amount of Rs.5 crores more to the respondent Corporation by 31.01.2011 subject to, however, the settlement of accounts/adjustment to be done by the Committee who is already seized of the matter. On receipt of the above-stated amount of Rs.5 crores from the State Government, the respondent Corporation is directed to release the retiral dues (except commutation of pension) to the remaining 123 retirees also by 28.02.2011. In the light of the fact that Rs.5 crores more have already been released by the State Government and a further direction to release an additional amount of Rs.5 crores has been issued, the interim orders dated 25.09.2009 and 29.11.2010 are vacated. It is made clear that in the event of CWP No.19084 of 2009 PRTC.doc - 8 – non-compliance of the above directions by the State of Punjab or the Corporation, the petitioners shall be at liberty to seek revival of orders dated 20.09.2010 and 29.11.2010 on the adjourned date. It is also directed that the retirees shall be paid their pension in future by the 10th of every calendar month. The directions for payment of the arrears of commutation of pension shall be issued at an appropriate stage.” (7). Mr. Khosla, has today filed yet another affidavit to the following effect:- “That after the last date of hearing, i.e. 20.12.2010, the respondent received another instalment of Rs.5 crores. With the total disbursement of this instalment, the deponent has cleared the payment of retiral benefits to the retirees who retired on or before 30.09.2010 and gratuity has been released to the retirees who retired between 1.10.2010 and 31.12.2010. It is also clarified that all the retirees are being paid full pension and the pension of those retired after October 2007 has not been commuted. Rest of the retirees will be paid their benefits shortly. ” (8). It is stated, on instructions from the officers of the Corporation, that all those employees who retired by 31st October, 2010 have since been paid their pension, Gratuity and other retiral dues. It is assured that the claim of the employees who have retired meanwhile CWP No.19084 of 2009 PRTC.doc - 9 – will also be taken up at the earliest to make an endeavour that each one of them gets his dues within three months from the date of retirement except the commuted value of Pension. (9). Learned counsel for the petitioners point out and rightly so that the petitioners have been paid their pensionary benefits in the pre-revised pay scales only even when the Corporation, like the other Departments/Wings of the State Government, has already revised the pay-scales of its employees w.e.f. 01.01.2006. They further submit that most of the petitioners have retired after 01.01.2006 and are entitled to be firstly placed in the revised pay scales from the due date and thereafter to the consequential revised retiral dues. (10). The entitlement of the petitioners for the grant of revised pay scales or revised retiral dues has not been and cannot be disputed. (11). Mr. Khosla, however, submits that due to paucity of funds the Corporation is unable to respond to all of its obligations and should therefore be given some CWP No.19084 of 2009 PRTC.doc - 10 – reasonable period, the needful shall be done within the permitted time-frame. (12). Having heard learned counsel for the parties, I am of the considered opinion that with a view to test its bona fides and to enable the Corporation to take correctional measures, some more time can be granted as the coercive steps, like disposal of the moveable/immoveable assets, at this stage may not serve the avowed object nor would help the Corporation to discharge its statutory liabilities in performance of its duties as an organ of the ‘welfare State’. Suffice would be to grant some more reasonable period to the Corporation to augment its financial resources and generate sufficient funds to discharge its acknowledged obligations. (13). These writ petitions are, accordingly, disposed of with the following directions:- i. All those employees who have retired after 01.01.2006 shall be paid the arrears of revised pay- scales as well as the revised pensionary benefits following the slab adopted by the Punjab Government. The first slab/instalment in the instant case shall be released on or before CWP No.19084 of 2009 PRTC.doc - 11 – 31.07.2011 followed by the next slab/instalment within the same duration of period as fixed by the State Government; ii. The commuted value of Pension shall be released to the above mentioned category of retirees by 30.04.2012; iii. The options given by the employees to switch over to the Pension Scheme with an undertaking to refund the advance, if any, received by them along with interest, shall be considered by the Corporation in the light of the decision rendered by this Court in the case Mohinder Singh v. Pepsu Road Transport Corporation Patiala & Anr., 2009(2) SCT 214, however, subject to the final outcome of the SLP stated to have been filed by the Corporation in which stay has also been granted by the Hon’ble Supreme Court. It is made clear that the final decision in the said SLP shall be binding on the parties even if no separate appeals are filed by the Corporation. The implementation of this direction shall also be kept in abeyance till the final decision by the Hon’ble Supreme Court. Those retirees who want to exercise such option on the basis of pleas other than Mohinder Singh’s case CWP No.19084 of 2009 PRTC.doc - 12 – (supra) they may separately represent for the same and their claim(s) shall also be considered and disposed of separately within six months by passing a speaking order. iv. Wherever the Corporation is of the bona fide belief that the employee(s) failed to exercise the option for Pension Scheme within the prescribed and/or extended period without any reasonable excuse and none of the decision(s) relied upon by such employee(s) apply in his/their case(s), the Corporation shall be at liberty to pass speaking order(s) to that effect after giving an opportunity of personal hearing to the employee(s). However, if the claims are found to have been rejected mechanically to cause harassment to the retirees, the Corporation shall be liable to compensate them with exemplary costs and interest @ 12% per annum; v. Keeping the financial constraints of the Corporation in view, the award of interest, to the petitioner(s) is kept in abeyance; vi. It is, however, directed that the failure of the Corporation to adhere to the above-mentioned CWP No.19084 of 2009 PRTC.doc - 13 – schedule shall entitle the petitioners to interest @ 9% p.a.; vii. As regards those categories of employees who though have been granted pension but are seeking the ‘counting of their qualifying service from the date of joining’ instead of the date when they started contributing to the ‘Contributory Fund’, the petitioners rely upon certain decisions of this Court where similar relief had been granted. Liberty is accordingly granted to all such employees to submit a self-explanatory representation(s) along with the binding decision(s) relied upon by them and such representation(s) shall be collectively disposed of by the Managing Director by passing a speaking order keeping in view the Service Regulations and/or other Rules, if any, applicable on the subject and if so possible, after granting an opportunity of hearing to the aggrieved in their representative capacity, within a period of four months from the date of submission of such representation(s); viii. Interest at the statutory rate shall be paid on Gratuity in terms of the undertaking already given by the respondent-Corporation before a Co-ordinate CWP No.19084 of 2009 PRTC.doc - 14 – Bench in COCP No.562 of 2010 and other connected matters; ix. So far as the dues of ‘Leave Travelling Concession/Allowance’, ‘Medical Allowance’ or the ‘overtime allowance’ claimed by some of the petitioners are concerned, it is pointed out that the petitioner(s) have already served the respondents with legal notice(s) and/or have raised such claims but no decision appears to have been taken so far. The respondents are accordingly directed that whosoever has represented, raised and/or served the Corporation with a legal notice, the claim of such retiree shall be considered in accordance with the rules/policy and disposed of by passing a speaking order within six months from the date of receipt of a certified copy of this order and if anything found due, shall also be released within three months thereafter; (14). With these observations and directions, the writ petitions are disposed of. Dasti. 03.03.2011 vishal shonkar (S u r y a K a n t) Judge