1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.4930/2002. : : Gokul Chand Pareek Vs. Chairman, RSRTC & Ors. : : Date of Order 2.3.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Lokesh Atrey for the petitioner. Mr. R.D.Rastogi for the respondents. Heard learned counsel for the parties. 2. This writ petition has been filed by the petitioner, who has retired from service of the respondents on 31.12.2001 from the post of Bus Conductor. Petitioner has approached this Court with the prayer that the respondents be directed to grant him annual grade increments, benefits of selection scale entire amount due towards annual grade increments, pay arrears thereof and all other due amount pursuant to award of Labour Court dated 19.7.1989 and release his other retiral benefits such as gratuity, provident fund etc together with interest. 2 3. Shri Lokesh Atrey, learned counsel for the petitioner submitted that petitioner was engaged on the post of Bus Conductor on 10.10.1973. He served the respondents till he retired on 31.12.2001. His services were illegally terminated on 9.11.1983. At his instance, the Government made reference to Labour Court. Labour Court vide its award dated 19.7.1989 set aside the termination order and directed the respondents to reinstate him in service with continuity and grant him all back wages with further direction that in case consequential benefits are not paid to the petitioner within a period of three months, he shall be entitled to interest @ 12% per annum. Petitioner was although reinstated in compliance of the award in 1989 but till 2000 he was being paid only at the minimum pay scale of Rs.950/-. Award of Labour Court has attained finality and till date the petitioner has received only half of the due amount and back wages and its compliance has not been fully made. In the meanwhile petitioner attaining the age of superannuation retired on 31.12.2001. Petitioner was served with a charge-sheet on 20.12.2001 only ten days of his retirement in relation to incident where he allegedly misbehaved with Inspector of of Flying Squad. 3 It is argued that charge-sheet was issued to the petitioner only for depriving him of his retiral benefits. 4. Shri R.D.Rastogi, learned counsel for the respondents opposed the writ petition and submitted that Labour Court although set aside the order of termination, but substitute the same by penalty of withholding two grade increments. Petitioner was reinstated back in service on 8.11.1989. It was stated that since his two grade annual increments were withhold he was liable to be placed at the minimum pay scale for a period of two years. Fresh pay fixation order has been passed on 17.3.2003 by which he was granted annual grade increments for the subsequent years. His pay has been revised as per Revised Pay Scales Rules, 1998. It is contended that benefit of selection scale of 9, 18 & 27 years of service is subject to satisfaction of the employer and depending upon satisfactory service record of the employee. Learned counsel invited attention of the Court towards a statement filed as Annexure-R/2, according to which petitioner in one spell remained absent for 94 days for which he was awarded penalty of withholding of two annual grade increments without cumulative effect vide order dated 4 7.3.1991. Similarly he was absent for 2392 days for which he was vide order dated 20.12.1999 awarded penalty of stoppage of two annual grade increments without cumulative effect. He then absented from duties in year 2001 for 93 days. Learned counsel submitted that petitioner was issued show cause notice on 16.1.1980 for embezzlement a sum of Rs.80/- on which he was issued charge-sheet on 4.11.1981. Subsequently, he was served with charge-sheet on 6.5.1983 and yet another charge- sheet on 5.2.1999 on allegations of embezzlement a sum of Rs.285/-. Learned counsel submitted that on account of pendency of these charge-sheets, retiral benefits could not be paid to the petitioner. It was argued that so far the pension claim of the petitioner is concerned, he was member of CPF and has received the benefits at the relevant time when options were invited, he did not exercise the option. In any case, even if option is treated to have been exercised, pension case of the petitioner shall be approved by Regional Commissioner, Provident Fund. The petitioner was required to submit Form No.10 including his bank account number and photograph with his spouse for the purpose of grant of pension and till date no such form is submitted by the petitioner. Learned 5 counsel also submitted that at the time when services of the petitioner were terminated from service on 9.11.1983, he was under suspension and therefore, even if his reinstatement was made, he would be entitled to only 50% of salary as subsistence allowance because at the time of reinstatement also he would be deemed to have been continued under suspension for the entire intervening period. Learned counsel strongly opposed the claim of the petitioner on the premise that he had been absented from duties for large number of days, therefore, he is not entitled to desired relief. 5. Learned counsel for the petitioner has rejoined and submitted that the respondents have said nothing about unpaid consequential benefits in compliance of award of Labour Court dated 19.7.989. Learned counsel submitted that the petitioner has already exercised option for CPF and he has never received any show cause notice dated 16.1.1980. He also did not receive any of the charge-sheets dated 4.11.1981, 6.5.1983 and 5.2.1999. He first time came to know of the charge-sheets from reply of the writ petition. The amount of CPF has already been paid to the petitioner and only gratuity remains unpaid. 6 6. Having heard learned counsel for the parties and perused the material on record, I find that retiral dues of the petitioner were withheld on the basis of charge- sheet dated 20.12.2001, which pertains to incident of 5.5.1975 and the respondents have now produced three more charge-sheets dated 4.11.1981, 6.5.1983 and 5.2.1999. No explanation is forthcoming from the side of the respondents as to why when the petitioner was throughout during this period was in their services, proceedings on the charge-sheets were not conducted and not completed. Charge-sheet dated 20.12.2001 has been issued to the petitioner on the allegation that he misbehaved with the Inspector of Flying Squad on 5.5.1975 when the vehicle in which he was discharging duties as Conductor was inspected. In the facts and circumstances of the case, action of the respondents in keeping the matter pending for payment of retiral dues of the petitioner for more than eight years cannot at all be justified. It appears that no proceedings whatsoever were conducted by the respondents against the petitioner in various departmental enquiries. Respondents have asserted that petitioner has not submitted requisite Form No.10 with photographs and bank account number to 7 enable the respondents to forward his case to Regional Provident Fund Commissioner, but the petitioner has submitted that he had submitted all such required information. Respondents are seeking to justify payment of only half the back wages pursuant to award of Labour Court on the ground that petitioner was under suspension when the order of his termination was passed and, therefore, after reinstatement also, he would be deemed to have continued under suspension. On facts, it is evident that respondents have even though found absence of the petitioner for a long period proved, but taking lenient view on both occasions awarded him penalty of stoppage of two grade increments without cumulative effect. They cannot again cite the reason of such period of absence when they themselves have not viewed such misconduct grave enough to warrant any sever penalty. Having regard to the facts of the case, this writ petition is disposed of with following directions that : (1) the respondents shall finalize pension case of the petitioner deeming all disciplinary enquiry pending against him as closed and grant his retiral dues, gratuity and other dues as admissible under the rules, 8 (2) the respondents shall be granted benefit of annual grade increments if due any, and shall also be granted benefit of selection scale, (3) the petitioner shall produce before the respondents Form No.10 with required photographs and bank account number, which the respondents shall forward to Regional Provident Fund Commissioner and petitioner would be at liberty to approach the Regional Provident Fund Commissioner. (4) So far as the arrears of back wages payable pursuant to award of Labour Court dated 19.7.1989 if not paid so far, the petitioner shall be at liberty to approach concerned authority under Section 29 of the Act within 45 days from today. Compliance of this judgment shall be made within three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.42.