Civil Writ Petition No.8774 of 2002 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.8774 of 2002 Date of decision: September 01, 2010. Upinder Nath & Ors. ...Petitioner(s) v. Municipal Corporation, Chandigarh & Ors. ...Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri T.S. Dhindsa, Advocate, for the petitioner(s). Shri Sanjiv Ghai, Advocate, for respondents No.1 & 2. Ms. Ambika Luthra, Assistant Advocate General, Punjab for respondent No.4. Kanwaljit Singh Ahluwalia , J. (Oral): In the present writ petition, it is prayed that the services rendered by Om Parkash in the erstwhile State of Punjab from 11.12.1953 to 3.8.1961, be taken into consideration by the respondents for grant of terminal benefits, including pension, grant of revised and selection grades and arrears. The petitioners herein are the legal representatives of late Shri Om Parkash. Om Parkash, as per Annexure P-1, joined Punjab Roadways and was posted in the office of General Manager, Punjab Roadways, Ambala City. His date of appointment for purposes of seniority, as per Civil Writ Petition No.8774 of 2002 -: 2 :- Annexure P-1, has to be reckoned from 11.12.1953. Upto 1.11.1966, it was joint Punjab, and Haryana was not bifurcated. In the year 1961, Om Parkash was posted as Mechanical Chargeman in the Fire Services of Punjab Government at Chandigarh. Om Parkash retired on 31.10.1986. He represented to the employer - Chandigarh Administration that for calculation of pension and terminal benefits, service rendered by him in the erstwhile State of Punjab be taken into consideration. Respondents failed to redress grievance of the petitioner and rejected his representation vide order dated 8.7.1991 Annexure P-11. Therefore, he was left with no other option except to approach the Central Administrative Tribunal (CAT). The tribunal in its order dated 21.11.2000, Annexure P-14, observed as under:- “We find that respondents have not applied their mind to the claim of the deceased employee. They have not come out with any sound reason for denying him the benefit of his earlier service with Punjab Roadways. We are not saying that he is entitled to count that service for pensionary benefits, but are saying that respondents have not applied their mind at all by taking a very convenient plea that such claim is time barred under the law of limitation. Wrong fixation of pension would provide a recurring cause of action every month in view of judgment in M.R. Gupta's case given by Hon'ble Supreme Court. Once he was given regular appointment in Fire Services of Punjab Government and Chandigarh from which he got allocated to Chandigarh subsequently, we Civil Writ Petition No.8774 of 2002 -: 3 :- find no reasons to ignore this service for computation of pensionary benefits. Nothing has been shown to us that date of confirmation can have the effect of denying service rendered prior to such date. He was a government employee and when allocated to Chandigarh was given another designation because post under his earlier designation did not exist in Chandigarh. We have not been shown any break in his service or re-employment by Chandigarh Administration which would have effect of denial of earlier service, if rules could say so.” Having observed so, a direction was issued to the respondents to reconsider the case of the petitioner for counting of his service prior to the date of his transfer to UT Administration, in the office of Director, Fire Services, Chandigarh and the State of Punjab. Respondent-Corporation was directed to pass a speaking order within three months from the receipt of certified copy of the order. It is a case where the employee initially being servant of the Government of Punjab, due to re-organization of the States, became employee of Chandigarh Administration. Later on, due to assignment of Fire Services to the Municipal Corporation, Chandigarh, for services rendered by him in the Chandigarh Administration, responsibility fell on the shoulders of the Municipal Corporation, Chandigarh. Act of Municipal Corporation cannot be assailed before the Tribunal. Hence, the present writ petition has been filed. The Municipal Corporation, Chandigarh passed impugned Civil Writ Petition No.8774 of 2002 -: 4 :- order Annexure P-17, wherein it has been observed as under:- “The General Manager, Punjab Roadways Depot intimated to the Director State Transport Chandigarh that service of Shri Om Parkash w.e.f. 11.12.1953 to 1.12.1958 cannot be verified because the Chandigarh Depot of the Punjab Roadways came into existence w.e.f. 10.6.1963. As per service record of late Shri Om Parkash, he was appointed on 4.8.1961 in the Chandigarh Fire Service, Chandigarh Administration as Mechanic Chargeman. Had he served in the Punjab Roadways, Ambala Depot even then he would have not been entitled for pensionary benefit for the period w.e.f. 1.12.1953 to 3.8.1961 as he was freshly appointed in this Department. Thus keeping in view the aforementioned facts, the claim of Upinder Nath and other legal heirs of late Shri Om Parkash, Ex-fitter is hereby rejected.” It is the case of the Corporation that they could not retrieve the record from the General Manager, Punjab Roadways, Ambala Depot, now falling under the jurisdiction of Haryana Government. Therefore, for the period from 11.12.1953 to 4.8.1961, for non-receipt of the record, the employee is made to suffer. For the period from 4.8.1961 to 24.3.1967, the Municipal Corporation has decided that the employee is entitled to pensionary benefits, for which calculations have been made and the same have been sent to Accountant General, UT Chandigarh on 12.12.1995. This Court has to consider relief of the employee into two parts. Firstly, from Civil Writ Petition No.8774 of 2002 -: 5 :- 11.12.1953 to 4.8.1961, and secondly, from 4.8.1961 to 24.3.1967. Regarding the period from 11.12.1953 to 4.8.1961, relief is not being given by the respondents to the petitioner as Municipal Corporation, Chandigarh, the Chandigarh Administration, Punjab Government and Haryana Government have not been able to trace the service record of the employee. Shuttling of the records between various States has led to the sufferings of the employee. Had the executive, at the relevant time, been efficient enough to update the service records of the employee, this prayer would not have arisen. In 1961, the employee was working at Chandigarh. At that time, supervisory officer was bound to update the service record of Om Parkash, employee on its rolls. It is not for the employee to maintain his service record. Those who were entrusted with management of establishment branch were bound to do so. For their failure, the employee cannot be made to suffer. The added reason for denial of benefit of service for the period from 11.12.1953 to 4.8.1961 is that the employee was freshly appointed in the Fire Services of Punjab Government at Chandigarh. It is, from the perusal of the record, it can only be revealed as to whether the employee was transferred or had joined the Fire Department, Chandigarh, through proper channel. In case, he had joined the Chandigarh Fire Department, after obtaining No Objection from the Punjab Roadways on the ratio of law laid down by a Division Bench of this Court in Manohar Lal Kakkar v. State of Punjab 1998(1) Service Cases Today 464, the employe is entitled to counting of service rendered in the Punjab Roadways towards computation and calculation of pension. This view is further fortified by the reasoning adopted in Kiran Saini v. State of Haryana and Others 2010(1) Civil Writ Petition No.8774 of 2002 -: 6 :- Service Cases Today 621 wherein an employee of the State of Haryana was given benefit of services rendered in privately aided school. Thus, the services rendered by the employee in Punjab Roadways from 11.12.1953 to 4.8.1961 is to be counted for grant of pensionary benefits. So, for computation of period from 4.8.1961 to 24.3.1967, for the purpose of grant of pensionary benefits, concerned Municipal Corporation has absolved itself by saying that having considered that Om Parkash was entitled to this relief, they had sent the same to the Accountant General along with calculations and service book and the Accountant General has not responded thereto. Whether any reminder was sent by the Corporation even after the order was passed by the CAT, there is nothing on the record. This callous attitude cannot be appreciated. Directions given by the CAT ought not to have been taken for granted. This Court shall refrain itself from commenting on the babudom, red-tapism prevalent in the executive and its insensitive and callous approach towards employees. Be that as it may, grievance of the petitioner has to be redressed. Therefore, the following directions are being given:- (i) The Accountant General, UT Chandigarh shall process letter No.CMC/FA95/354 dated 12.12.1995 sent by the Commissioner, Municipal Corporation, Chandigarh within three months, and take a final decision thereupon; (ii) 'Six months' time is granted to the Commissioner, Municipal Corporation, Chandigarh to make all-out efforts to retrieve and gather service record of the employee from 12.12.1953 to 4.8.1961 and upon verification thereof, final decision be taken regarding the due pensionary benefits Civil Writ Petition No.8774 of 2002 -: 7 :- which would have accrued to deceased Om Parkash failing which, the Commissioner, Municipal Corporation, Chandigarh, considering Om Parkash to be an employee of the Punjab Government, with effect from 11.12.1953, shall disburse all the arrears and pensionary benefits to the petitioners. However, the arrears shall be restricted to a maximum of 24 months prior to the filing of the petition in the CAT. With above observations and directions, the writ petition stands disposed of. However, there will be no order as to costs. [Kanwaljit Singh Ahluwalia] September 01, 2010. Judge kadyan