IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH L.P.A. No. 635 of 2010 (O&M) Date of Decision: December 21, 2010 Urmila …Appellant Versus The Managing Director, HPGCL, Shakti Bhawan, Sector-6, Panchkula & another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present : Mr. J.K. Goel, Advocate, for the appellant. Mr. Narender Hooda, Advocate, for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The appellant is a hapless widow and is moving from pillar to post to realise the pensionary benefits and family pension as also ex gratia grant on account of death of her husband, who was declared dead by the Civil Court vide its judgment and decree dated 15.10.2005 (Annexure P-7). According to the declaration given by the Addl. Civil Judge (Sr. Div.), Panipat, Ishwar Singh husband of the appellant was declared dead as he was not heard for the last 17 years. In the judgment and decree a reference has been made to DDR dated 21.1.1989 (Ex.P1), which shows that the husband of the appellant went missing around that time. 2. Shri Ishwar Singh was working as ‘T-Mate’ on work charge L.P.A. No. 635 of 2010 basis with the respondent-Board on 9.6.1976. He was promoted as Assistant fitter on work charge-basis, on 1.5.1982. The husband of the appellant went missing and DDR to that effect was lodged by the appellant on 21.1.1989. As no retiral benefits or ex-gratia was paid to the appellant on account of the death of her husband, she filed a civil suit seeking declaration for ex-gratia employment / benefits. The appellant along with her minor daughter also claimed that they were entitled for service benefits of their husband / father being his legal representatives. Learned Civil Judge (Junior Division), Panipat dismissed the suit vide his judgment and decree dated 2.12.2005 (P-4). The appeal filed by them also met the same fate (P-5). However, the decisions of the learned Courts below was challenged before this Court in RSA No. 536 of 2007, which was decided on 14.8.2007. The learned Judge while disposing of the regular second appeal, however, issued directions, which read as under :- “ Before I part with this order of mine, it is made clear that keeping in view the facts and circumstances of this case, the appellants, if so desired, would knock the door of the competent authority by way of representation to be filed by them within 30 days from the date of receipt of a certified copy of this order and the department shall dispose of that representation within three months thereafter. It is also made clear that the pendency of the present suit filed by the appellant would not stand in its way at the time of disposal of t his representation and t he competent authority would apply its mind keeping in view the notification dated 10.10.1988, which could not be 2 L.P.A. No. 635 of 2010 produced by the present appellant-plaintiffs before the learned lower court for the reasons best known to them.” 3. In pursuance of the aforesaid directions, the appellant filed the representation, which has been rejected vide order dated 12.11.2007, by observing as under :- “In this connection, it is submitted that Shri Ishwar Singh missing was working on work charged basis as Assistant Fitter and his services were never regularized. As such the applicant is not entitled to any benefit or regular employee's services. As per the Haryana Govt. circular No. 16/88/2004-4GSII dt. 3.6.06 adopted by HPGCL vide Memo No. 10/CWE/ Amn./ GB-47 dt. 19.9.2006 'deceased/ missing government employee” means a Government employee “Appointment on regular basis, and not working on daily wages, casual, apprentice, work charged, adhoc, contractual or re-employment basis.” As per above notification the pension and other pensionary benefits can only be allowed in case of a regular employee and not work charged employee. Sh. Ishwar Singh husband of the applicant was working on work charged basis and as such the applicant is not entitled to any pension, pensionary benefits and employment under ex-gratia scheme. In view of the above facts and having gone through the contents of representation dated 20.09.2007 submitted by the applicant and material 3 L.P.A. No. 635 of 2010 facts on record, I do not find any merit in this case and petitioner is not entitled to any pension, other pensionary benefits and employment under ex-gratia scheme at par regular employees.” 4. From the perusal of the aforesaid paras it is obvious that the appellant was denied the benefit of the policy dated 8.2.1988 (Mark ‘A’) and 10.10.1988 (P-3) on the ground that the aforesaid policy was available in respect of those missing Government employees who were appointed on regular basis and not working on daily wages, casual, apprentice, work charged, ad hoc, contractual or re-employment. On the ground that Ishwar Singh-husband of the appellant was working on work-charged basis the benefit of the policy regarding ex-gratia payment / employment was denied and even the benefits with regard to pension /family pension were not given. 5. At this stage we may set out the policy of the Board in this connection. On 8.2.1988 the respondent-Board took some vital decision with regard to adjustment of its work charged staff. Clause (iv) of the policy postulated that if after adjustment the residual work- charged staff who are either considered unsuitable or do not find place for absorption against any regular post would be appointed as ‘T.Mate’ on regular basis for getting the equivalent number of posts created with the approval of the Board. According to the Policy the Board had decided to abolish the work-charged establishment w.e.f. 1.1.1988 vide memo No. C-58.NGE/G-1281/Ban-88 dated 8.2.1988. On 10.10.1988 (P-3) the respondent-Board in exercise of powers conferred by clause (c) of Section-79 of Electricity (Supply) Act, 1948, revised Recruitment and Promotion Policy in respect of its Operation Wing, inter alia, T- Mates and other employees on its establishment. It was further 4 L.P.A. No. 635 of 2010 observed that the work-charged T-Mates who are already in service of the Board, might continue till they are either retire or got adjusted against regular vacancies as and when available on the basis of eligibility and suitability. The seniority of the T-Mates was to continue to be on circle level as was the position earlier. 6. Mr. Goel, learned counsel for the appellant has argued that the respondent-Department undertook screening of T-Mates / Assistant Fitter for the purpose of regularizing their services in pursuance to policy dated 8.2.1988 (Mark ‘A’) and 10.10.1988 (P-3). A number of T- Mates were regularized. For the simple reason that the husband of the appellant was not present for regularization, his services could not be ordered to be reguarlised. According to the learned counsel the presence of Ishwar Singh was not necessary for regularisation because the whole record was available with the respondents and as per decision dated 8.2.1988 he should have been regularised. The argument is that he should have been regularised w.e.f. 16.11.1988 a day before he went missing according to the DDR dated 21.1.1989. According to the learned counsel once he is deemed to be regularised then the benefit of the policy dated 28.2.2003 for ex-gratia employment/payment would flow to the appellant and she would also be entitled to family pension. In support of his contention learned counsel for the appellants placed reliance on the Division Bench judgment of this Court in the case of H.V.P.N.L. and another v. Behari Parshad, 2009(2) RSJ 790. 7. Mr. Narender Hooda, learned counsel for the respondent has opposed the prayer made by the learned counsel for the appellant by arguing that the appellant has already lost in Civil Suit seeking declaration to the effect that she was entitled to grant of benefit of 5 L.P.A. No. 635 of 2010 compassionate employment /ex-gratia grant / financial grant as well as family pension. Therefore, after the dismissal of the suit on 2.12.2005 ( Annexure P-4) and thereafter dismissal of the appeal, no relief could be claimed by her. According to the learned counsel for the Board even the regular second appeal filed by the appellant would not come to her rescue because the decree continued to operate. 8. The other submission of the learned counsel for the Board is that once the status of the deceased husband of the appellant continue to be that of work-charged employee, no policy regarding ex- gratia payment /appointment or family pension would be available to her. He has maintained that it is available to those who have rendered regular basis service which qualify for pension and similar other benefits. 9. After hearing the learned counsel for the parties and perusing the paper book as also the judgment of the learned Single Judge we are of the view that the appeal deserves to be allowed. Before we deal with the issues concerning grant of retiral benefits and ex-gratia grant to the appellant and her husband, the issue with regard to termination of Shri Ishwar Singh, husband of the appellant, deserve to be dealt with. It has come on record that a DDR was lodged on 21.1.1989 complaining that Shri Ishwar Singh was missing from 17.11.1988. The Board terminated his services on 6.4.1993 on the allegation that he was absent from duty. It is evident that on the date of termination Shri Ishwar Singh was reported to be missing and was presumably dead. As a matter of fact he was absent from this world. It is pertinent to notice that the Civil Court has given declaration vide judgment and decree dated 15.10.2005 (P-7) that he was not heard for the last 17 years by those who would have naturally heard of his. It is 6 L.P.A. No. 635 of 2010 also relevant to mention here that the learned Single Judge has resorted to the technicalities by observing that termination order dated 6.4.1993 was not subject matter of challenge. In fact, once declaration dated 15.10.2005 (P-7) by the Civil Court has come that for about 17 years Shri Ishwar Singh was not heard by those who would have naturally heard of him then he is presumed to be dead. Moreover, the judgment and decree passed by the Civil Court, dated 15.10.2005 (P-7) has attained finality. Therefore, it takes us back to the year 1988 when he was reported to have gone missing. It is well settled that the services of a dead person cannot be terminated and if he has otherwise rendered qualifying service, adequate for pension then he would be entitled to such benefits. Therefore, the appellant would be entitled to all the retiral benefits admissible to her husband who died in harness. 10. The stage is now set to consider the case of the appellant and her husband as per the policy instructions dated 8.2.1988 and 10.10.1988 (Mark ‘A’ and P-3). It has come on record that husband of the appellant rendered service as T-Mate or as Assistant Fitter from 9.6.1976 till 16.11.1988. According to the DDR he went missing from 17.11.1988. According to the Policy dated 8.2.1988 and 10.10.1988 (Mark ‘A’ and P-3) the work-charged establishment was abolished by the Board and the relevant provision of the policy reads as under :- “(i) xx xx xx xx (ii) The practice of engaging workmen on work charged basis may be discontinued immediately. The existing work charged staff may be adjusted against available vacancies in different categories of staff by constituting a Screening Committee (Divisionwise) consisting of the following officers: 7 L.P.A. No. 635 of 2010 (1) S.E. of concern circle – Chairman (2) XEN of concerned Division – Member (3) A representative from the Head Office – Member Intimation in respect of a representative(s) of Head office on the above Committee is being sent separately. (iii) xx xx xx xx (iv) The residual work charged staff, who are either considered unsuitable, or do not find place for absorption against any regular post may be appointed as T-Mate on regular basis by getting the equivalent number of posts created with the approval of the Board. (v) xx xx xx xx (vi) The work charged staff who are found suitable for various posts may be offered regular appointments with deemed date of 1.1.1988, thereby meaning that there would be no work charged establishment with effect from 1.1.1988 in the Board....” 11. The aforesaid instructions were again referred in another circular letter dated 10.10.1988 (P-3) and the relevant portion of the notification dated 10.10.1988 would be necessary for deciding the controversy in hand, which reads thus: “27/Reg-119 In exercise of powers conferred by clause (c) of Section-79 of Electricity (Supply) Act, 1948, and all other enabling powers in this behalf, the Haryana State Electricity Board hereby makes the Revised Recruitment and Promotion Policy in respect of the following categories 8 L.P.A. No. 635 of 2010 of employees :- 1.0 OPERATION WING 1.1 T.Mates (Rs. 750/940) The Board has already abolished the workcharged establishment w.e.f. 1.1.1988 vide memo No. C-58.NGE/G- 1281/Ban-88 dated 8.02.1988. The work-charged T.Mates who are already in service of the Board, may be continued till they are either retired or got adjusted against regular vacancies as and when available on the basis of eligibility and suitability. The seniority of the T.Mates, shall continue to be on circle level as heretofore.” 12. A conjoint reading of the policy dated 8.2.1988 and the notification dated 10.10.1988 would show that the Board had abolished the practice of engaging workmen on work-charged basis with immediate effect i.e. 8.2.1988. The existing work-charged staff was to be adjusted against available vacancies in different categories by constituting a Screening Committee (Division Wise). With regard to the residual work-charged staff who were either found unsuitable or did not find place for absorption against any regular post, clause (iv) provided that such work-charged may be appointed as T-Mate on regular basis by getting equivalent number of posts created with the approval of the Board. According to Clause (vi) work-charged staff was to be offered regular appointments with deemed date of 1.1.1988, which in other words meant that there would be no work-charged establishment w.e.f. 1.1.1988. 13. The notification dated 10.10.1988 (P-3) also made it clear that the Board had already abolished work-charged establishment w.e.f. 1.1.1988, vide policy dated 8.2.1988 and the other work-charged 9 L.P.A. No. 635 of 2010 T-Mate were to work in service till they are either retired or got adjusted. Accordingly, Shri Ishwar Singh, husband of the appellant was required to be considered for regularisation and at best he was to be considered as regularised on the post of T-Mate w.e.f. 1.1.1988. A similar question based on the same policy instructions came up for consideration of a Division Bench of this Court in the case of Behari Parshad (supra) on which reliance has been placed by the learned counsel for the appellant. After placing reliance on various clauses of the policy instructions dated 10.10.1988, the Division Bench proceeded to hold as under:- “4. Learned counsel for appellant-corporation submitted that the respondent was a work charged Class-III employee and his age of superannuation was fixed at 58 years which was due on 31.12.1987. Thus, the respondent could not have been absorbed as a regular employee after attaining the age of superannuation. Learned counsel also made a reference to a judgment of learned Single Judge in CWP No.820 of 1991 submitting that after considering this question, the learned Single Judge held that since the writ petitioner therein could not have continued till 1.1.1988 when the policy for regularization came into force, his service could not have been regularized. 5. On the other hand, learned counsel for the respondent placed reliance on the circular dated 8.2.1988, particularly para (iv) as aforesaid. 6. On due consideration of rival submissions and perusal of the appeal records, we are of the considered view that the intent of said circular was very clear that if a work 10 L.P.A. No. 635 of 2010 charged employee was not found suitable to be absorbed in class-III post, he was to be absorbed in class-IV, and further that the respondent retired only on 31.12.1989, and not 31.12.1987, it is obvious that he continued in service beyond 31.12.1987 and thus, he was entitled to get the benefits of said Circular dated 8.2.1988 irrespective of the plea of appellant-Nigam that the respondent was a Class-III employee. This is also obvious that the continuance of service of the respondent after 1.1.1988, without regularisation would mean that he was treated as a Class- IV employee and was thus, covered under Clause (iv) of the Circular. As such, we may hold that the respondent was a work charged employee who was to retire at the age of 60. This is also not in dispute that para (iv) of the aforesaid circular was to be construed in favour of the work charged employees and as far as possible they were to be adjusted against the existing vacancies. And if it was not possible to absorb a work charged employee in class-III on being found unsuitable, he was to be absorbed in class-IV. As regards the judgment under reference in CWP No.820 of 1991, passed by a learned Single Judge, we do not find any discussion about Para (iv) of the Circular. 7. In view of all the aforesaid, we do not find any infirmity in the impugned judgment of learned Single Judge and the same is thus, affirmed. Moreover, we would like to clarify that this Court vide the order of even date has also dismissed LPA No.209 of 2007, filed by the appellant herein against the judgment and order passed in Civil Writ Petition 11 L.P.A. No. 635 of 2010 No.5136 of 1992 (Karam Singh vs. State of Haryana and others).” 14. From the perusal of the aforesaid paras it is evident that the policy instructions dated 8.2.1988 have been interpreted by this Court to mean that intent of those instructions was very clear that if a work charged employee was not found suitable to be absorbed in one class, he was to be considered as regular employee (T-Mate) w.e.f. 1.1.1988. The deceased husband of the appellant was allowed to continue till 16.11.1988 which mean that he continued beyond the policy dated 8.2.1988. According to para 4 of the policy, the work-charged employees were to be adjusted as far as possible against the existing vacancies. Those who were to remain un-adjusted, they were to be considered as regularised w.e.f. 1.1.1988 as it was a diminishing cadre. Accordingly, it was obligatory on the part of the respondents to treat the deceased husband of the appellant as regularised either against the post of ‘T-Mate’ or ‘Assistant Fitter’. The aforesaid approach is based on the policy instructions adopted by the Board which has now been inherited by the private respondents. However, on the impugned order the claim of the appellant has been rejected entirely on illegal premises and the learned Single Judge also has committed the same error. Once according to the policy instructions, the remaining work-charged were to be treated as regularised w.e.f. 1.1.1988 then there was no reason for the respondents to deny that status to the husband of the appellant. Accordingly, by virtue of clause (iv) of the policy instructions dated 8.2.1988, the husband of the appellant would be deemed to be regularised and he would be entitled to the grant of pensionary benefits as per rules as he had rendered service from 9.6.1976 to 16.11.1988, as he went missing on 17.11.1988. The appellant being widow would 12 L.P.A. No. 635 of 2010 be entitled to the ex-gratia financial benefits of ` 2,50,000/- in pursuance of policy dated 28.2.2003 (P-11). She would also be entitled to the grant of family pension as per the rules. 15. The argument of Mr. Narender Hooda, learned counsel for the respondents that there is Civil Court degree against the appellant, has failed to impress us because the effect of the Civil Court degree was nullified when on 14.8.2007, while deciding R.S.A. No. 536 of 2007, this Court had clarified that the judgment and decree rendered in the suit would not stand in the way of the respondents while disposing of the representation filed by the appellant. The learned Judge while disposing of the appeal further observed that the competent authority shall apply its mind keeping in view the notification dated 10.10.1988, which could not be produced by the appellants before the learned trial Court. It is, thus, obvious that the notification dated 10.10.1988, which in turn make a specific reference to the earlier instructions dated 8.2.1988 were required to be considered by the respondents. They miserably failed to appreciate those policy decision as have already been discussed in the preceding paras. Accordingly, we find that the argument is without any substance and we have no hesitation to reject the same. 16. It would also not be out of place to mention here that the views expressed by a Constitution Bench judgment of Hon’ble the Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1, would not be attracted t the facts of the present case because the husband of the appellant would be deemed to be regularised with all those who were working on work-charged basis as on 1.1.1988. Moreover, the deemed regularisation is ordered for the purposes of granting the relief of pension, family pension and ex-gratia. 13 L.P.A. No. 635 of 2010 17. As a sequel to the above discussion, the appeal succeeds. The judgment of learned Single Judge dated 21.4.2009 is set aside. The order passed by the respondents dated 12.11.2007 (P-9) is also quashed. The respondents are directed to pay to the appellant the amount of ex-gratia grant of ` 2,50,000/- expeditiously but not later than two months from the date of receipt of copy of this order. She is also held entitled to payment of interest @ 10% per annum for a period of three years preceding the date of filing the writ petition, which was filed on 7.1.2008. The appellant shall also be paid family pension from 17.11.1988 till date along with interest @ 10% per annum. The respondents are further directed to release all the retiral benefits to the appellant, which were admissible to her husband like gratuity, leave encashment, GIS etc. etc. The aforesaid benefits be released to her within a period of two months along with interest at the rate of 10% from the date the same were payable up to the date of payment. (M.M. KUMAR) JUDGE (RITU BAHRI) December 21, 2010 JUDGE ‘sp’/Pkapoor 14