Civil Writ Petition No. 16906 of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 16906 of 1999 Date of decision:-13.7.2011 Satya Kansal and others ...Petitioners Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Sumit Mahajan, Sr. Advocate with Mr. Vaibhav Sehgal, Advocate for the petitioners. Mr. Puneet Gupta, Addl.A.G. Punjab. RITU BAHRI J. Petitioners have filed this writ petition for grant of pro-rata pension w.e.f. 2.12.1971 of Shri Megh Raj Kansal after his death on 1.7.1991. The petitioners became entitle to grant of family pension with all consequential benefits. Shri Megh Raj Kansal was a school master under the administrative control of respondent Nos.1 and 2. On 1.12.1969 he was sent out on deputation to Punjabi University, Patiala for two years. He sought voluntarily retirement from the Government service w.e.f. 2.12.1971. Thereafter, he was permanently absorbed in Punjabi University. Vide instructions dated 24.10.1972 (Annexure P- 1) a Government employee was allowed for retiral benefits from the Government from the date he was absorbed in Public Sector Undertaking. Vide order dated 10.2.1976 (Annexure P-2) his voluntarily retirement was accepted w.e.f. Civil Writ Petition No. 16906 of 1999 -2- 2.12.1971. Vide order dated 09.6.1976 (Annexure P-3) pensionary benefits were approved to be released w.e.f. 2.12.1971. Despite the abovesaid communications no retiral dues were sanctioned. Petitioner filed a writ petition No.1909 of 1982. During pendency of this writ petition Megh Raj Kansal expired on 1.7.1991. The present petitioners were substituted as Legal Heirs. The writ petition was allowed with special cost of Rs.10,000/- on 24.5.1996 vide Annexure P-5. The LPA No.920 of 1996 was dismissed on 04.12.1996. Provisional pension was sanctioned vide order dated 19.3.1997 for the period from 2.12.1971 to 1.7.1991. Vide order dated 12.4.1997 the provisional family pension @ 90% of the admissible rate plus DA to applicant No.1 was sanctioned from 2.7.1991 to 31.3.1997, after filing a contempt petition bearing COCP No.1373 of 1997 family pension was released upto 31.3.1997. Thereafter, family pension was stopped and the petitioners have to file the present writ petition. Counsel for the petitioner Mr. Sumeet Mahajan, Advocate has argued that family pension is not being released to the petitioners by taking a erroneous view that as per Rule 5.3 (2) of the Pension Rules that family pension is admissible only when an employee complete 25 years of service. He has referred to the instructions dated 24.10.1972 (Annexure P-1) which clearly provide that where an employee is sent on deputation or permanently absorbed in the public enterprises, he shall be entitled to pro-rate pension/gratuity immediately on his absorption. The procedure prescribed in C.S.R. Volume-II would apply in case of public sector undertaking. The retiral benefits will be disbursed from the date indicated in the Government letter allowing the Government employee to be absorbed in the Public Sector Undertaking. There will be no distinction in the pro-rata pension and full pension. Applying the abovesaid instructions the petitioner after his absorption on 2.12.1971 was entitled to receive pension from the State Government as per the C.S.R. Rules. As per Rule 5.2(a) of the C.S.R. Vol.II Civil Writ Petition No. 16906 of 1999 -3- Part-I once monthly pension has been sanctioned to a Government employee then on his death family pension is admissible. As per Rule 5.3 (2)(b) if the Government employee has taken lump-sum amount in lieu of pension the Government shall have no liability for payment of family pension. In the present case Megh Raj Kansal was given pension w.e.f. 2.12.1971 to 1.7.1991 at the rate admissible from time to time under Rule 9.17 of the Pension Rules. No lump sum payment of pension has been given as contemplated under Rule 5.3 (2)(b), therefore, petitioners' case is not covered under the proviso of Rule 5.3(3) of the Pension Rules. Megh Raj Kansal has been sanctioned monthly pension after his death for the period of 2.7.1991 to 31.3.1997. Provisional pension has been released. There is no violation of rule 5.3 of the Pension Rules. It is only in the case of lump sum payment in lieu of pension that a family pension is not to be paid. The rational behind this Rule is that regular pension is paid on monthly basis in small amounts and the pensioner does not enjoy his benefit of entire pension given in lump sum. His right to pension is till his death and the same right is given to his family members on account of his death by releasing family pension. There is no ambiguity in this rule and once an employee paid lump sum payment, no further liability of family pension is to be on the Government. Mr. Puneet Gupta, Addl.A.G. Punjab has not disputed that after absorption in the Corporation in the year 1971 Megh Raj Kansal was entitled to regular pension from the State Government in view of instructions dated 24.10.1972 (Annexure P-1). He has argued that after the death of employee on 1.7.1991 lump sum pension has been paid and the petitioner was not entitled to family pension under Rules 5.3(2)(b) of Punjab CSR Vol.II as per Annexure-2. I have heard learned counsel for the parties and have gone through the case file carefully. The controversy involved in the present matter is that after Civil Writ Petition No. 16906 of 1999 -4- absorption of the petitioner Megh Raj Kansal in Punjabi University in the year 2.12.1971 whether he has right to draw pension from the State Government. As per Annexure P-1 instructions issued by the State of Punjab dated 24.10.1972 whereby when a permanent employee absorbed in Public Sector Enterprises, he shall be entitled to receive pension on his absorption instead of deferring it to the normal date of superanuation. It has been clarified that such employees will be deemed to have been retired from Government service on the date of absorption. The procedure laid down in Chapter 9 of Punjab Civil Service Volume-II which applied to Government employees, who retired in normal course would apply in case of public undertaking. The instructions, however, clarified that there will be no distinction between pro-rate pension and full pension if any purpose. In compliance of these instructions on 9.6.1976 vide (Annexure P-3) the pensionary benefits were approved to be released in favour of the deceased w.e.f. 02.12.1971. The District Education Officer had informed the Accountant General vide letter dated 13.9.1976 (Annexure P-4) that the employee Megh Raj Kansal has been permanently absorbed in the Punjabi University and his pension be sanctioned from DPI in due course. The petitioner Megh Raj Kansal died on 1.7.1991 and after filing of writ petition No.1909 of 1982 and in contempt proceedings in COCP No.1373 of 1997 the pension was released on 19.3.1997 w.e.f. 2.12.1971 to 1.7.1991 and family pension from from 2.7.1991 to 31.3.1997. Thereafter, family pension was stopped invoking the Rule 5.3 of Punjab Civil Services Rules that the Government has not liable to pay the family pension. It is worth highlighting that the pension which was sanctioned w.e.f. 2.12.1971 to 1.7.1991 was at the rate admissible from time to time and it was not a lump sum payment in lieu of pension. For monthly pension as admissible and received by an employee Civil Writ Petition No. 16906 of 1999 -5- under Rule 5.3(2)(a) Government has a liability for payment of family pension. Rule 5.3(2)(a) is reproduced here below :- “5.3(2) A permanent government employee who may be permitted to be permanently absorbed in a service or post in or under a Corporation or Company wholly of substantially owned or controlled by Government or in or under a body controlled or financed by Government Municipality, Panchayat Samiti or Zila Parishad, shall if such absorption is declared by Government, to be in the public interest, be deemed to have retired from Government service from date of such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from the date of such absorption or the date of his voluntary retirement, whichever is later. Each such Government employee is required to exercise an option within six months of his absorption from either of the alternative indicated below :- (a) receiving the monthly pension and death-cum- retirement gratuity under the usual Government arrangements; or (b) receiving the death-cum-retirement gratuity and a lump sum amount in lieu of pension worked out with reference to the commutation table obtaining on the date from which the commuted value becomes payable. (3) Where no option is exercised within the specified period the employee will be automatically governed by alternative (b). An employee opting for alternative (a) is entitled to commutation of a portion of the pension admissible to him in accordance with the provisions of rules contained in Chapter XI. Provided that Government shall have no liability for the payment of family pension in such a case; Provided further that no declaration regarding absorption in the public interest in a service or post in or under such Civil Writ Petition No. 16906 of 1999 -6- Corporation, Company, Municipality, Panchayat Samiti or Zila Parishad shall be required in respect of a Government employee whom Government may, by order, declare to be a scientific employee.” As per Rule 5.3(2)(b) of the Rules when an employee is governed by alternative means that he received a lump sum amount in lieu of pension then as per rule the Government has no liability of family pension. In the present case the pension was sanctioned on monthly basis and therefore the case is covered under Rule 5.3(2)(a). Under no circumstances the proviso to Sub Clause (3) will be applicable in the case of the petitioners. The objection raised by the Senior Accounts Officer are totally against the rules. The Division Bench of this Court in State of Punjab versus Phulan Rani 2003(3) S.C.T. 937 had examined Rule 5.3 as under:- “The position, therefore, is that alternative (b) is inapplicable as Mohinder Singh Walia was getting monthly pension in terms of alternative (a). An employee opting for alternative (a) is entitled to commutation of portion of pension admissible to him in accordance with provisions of rule contained in Chapter XI. The proviso below sub-rule (3) to Rule 5.3 provides that the Government shall have no liability for the payment of family pension in such a case. The State wants to absolve its liability to pay family pension in terms of the first proviso to sub-rule (3) of Rule 5.3. The said proviso below sub-rule (3) of Rule 5.3 is to be interpreted in a manner which would be in conformity with the object of the Rule. The object of sub-rule (3) of Rule 5.3 is that where no option is exercised in terms of the alternatives (a) and (b) of sub-rule (2) of Rule 5.3 then the employee will be automatically governed by alternative (b). It is, therefore, in an eventuality where an employee is governed by alternative (b) and had received the death-cum-retirement gratuity and a lump sum amount in lieu of pension worked out with reference to the commutation table obtaining on the date Civil Writ Petition No. 16906 of 1999 -7- from which the commuted value becomes payable that, in such case the Government shall have no liability for the payment of family pension. It is not the case of the State Government that Mohinder Singh Walia is governed by alternative (b) of sub-rule (2) of Rule 5.3 or that he had got his pension commuted so as to dis-entitle the family of Mohinder Singh Walia for receiving the family pension.” In the facts of the present case Megh Raj Kansal has not been given lump sum payment of amount in lieu of pension as contemplated under Rule 5.3(2)(b), therefore, the petitioners are held entitled to the family pension as per rules. As per the Division Bench judgment the petitioners are entitle to family pension. In this case the petitioner Nos.2 and 3 have attained majority and thus are not eligible. Now to receive family pension, this writ petition is allowed qua petitioner No.1, who is widow of Megh Raj Kansal and direction is given to the respondents to release the family pension w.e.f. 1.4.1997 till date alongwith interest @ 6% per annum within a period of four months from the date of receipt of certified copy of this order. The petitioner being widow has been dragged into the litigation since the year 1999, it is further directed that a cost of Rs.25,000/- be paid to her. July 13, 2011 ( RITU BAHRI ) Vijay Asija JUDGE