IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 5263 of 2008 DATE OF DECISION : 03.08.2009 Ashok Kumar Chadha .... PETITIONER Versus Haryana Vidyut Parsaran Nigam Limited, Panchkula ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. R.K. Malik, Senior Advocate, with Mr. Surya Pratap Singh, Advocate, for the petitioner. Mr. Mohnish Sharma, Advocate, for the respondent. * * * SATISH KUMAR MITTAL , J. The petitioner has filed the instant petition under Article 226 of the Constitution of India for issuing direction to the respondent Nigam to grant him pension by treating his service from 8.9.1995 to 31.1.2008 as qualifying service for the said purpose; and further to release the benefit of yearly increments from 8.9.1995 to 31.1.2008, which has also not been given to the petitioner. In the present case, the petitioner joined as UDC with the Haryana State Electricity Board (now Haryana Vidyut Parsaran Nigam Limited) on 9.2.1973. He was removed from service on 15.4.1987 on CWP No. 5263 of 2008 -2- account of a departmental action taken against him. The petitioner raised an industrial dispute. The matter was referred to the Industrial Tribunal. The Labour Court, Ambala, vide its Award dated 8.9.1995 (Annexure P-1) set aside the order of removal and directed the respondent to appoint the petitioner afresh as UDC on the same terms and conditions, upon which he was working prior to the passing of order of removal from service. The respondent challenged the said Award before this Court by filing CWP No. 3378 of 1996. This Court, vide order dated 7.3.1996, stayed the operation of the Award and admitted the said writ petition. Subsequently, the petitioner moved an application for vacation of the stay order. Vide order dated 29.7.1996 (Annexure P-2), the stay order was vacated by this Court, while making the following observations : “After hearing learned counsel for the parties I am of the opinion that if the order staying operation of the award of the Labour Court is allowed to stand, the workman will suffer a substantial loss as in the absence of a letter of appointment as directed by the Labour Court, he will not be entitled to salary for the period the writ petition remains pending in this Court. In this view of the matter, stay order dated 7.3.1996 is vacated. However, it is directed that in the event of the writ petition being allowed, the workman will have no claim to continue in service in view of the letter of appointment if now issued by the management in terms of the order of the Labour Court. It is clarified that it will be open to the petitioner Board not to offer appointment to the workman but in that eventuality the Board shall be liable to pay salary to the workman from the date of CWP No. 5263 of 2008 -3- this order till he is taken back in service under the impugned order in the event of the writ petition being dismissed. The respondent workman shall in that event be also entitled to interest on the delayed payment of salary from the due date at the rate of 12% per annum as in the absence of the above directions he will suffer a substantial loss even if the writ petition is dismissed on a later date.” Ultimately, vide judgment dated 6.10.1998 (Annexure P-3), the said writ petition filed by the respondent was dismissed being without merit. The respondent filed LPA against the said judgment, which was also dismissed vide order dated 13.10.2000 (Annexure P-6). After the passing of the judgment dated 6.10.1998 by this Court, the respondent offered appointment to the petitioner vide appointment letter 30.9.1999 (Annexure P-4). In pursuance of this letter, the petitioner was allowed to join duty on 12.10.1999. Thereafter, he continued in service. Vide order dated 1.5.2000 (Annexure P-5), the petitioner was allowed salary of the post of UDC with effect from 29.7.1996 (date of the interim order passed by this Court) to 11.10.1999 (date of reinstatement of the petitioner). Thereafter, on attaining the age of superannuation i.e. 58 years, the petitioner retired from service on 31.1.2008. It is made clear here that from 29.7.1996 till his retirement, he was paid salary without giving any yearly increment. After the retirement, the petitioner has been denied the pension on the ground that he has rendered total service of 8 years 3 months 20 days (from 12.10.1999 to 31.1.2008) i.e. less than 10 years, and CWP No. 5263 of 2008 -4- as per Rule 6.16 (1) of CSR Vol. II, a retiree is entitled for pension, only if he has 10 years qualifying service. Hence, the petitioner filed the instant petition. In the written statement, it has been pleaded by the respondent that only the service rendered by the petitioner from 12.10.1999 (date of joining in pursuance of the appointment letter) to 31.1.2008 (date of retirement) is to be counted for the purpose of granting pension. It is stated that prior to that, the petitioner did not render any service. However, under the interim directions of this Court, the salary was paid to him from 29.7.1996 to 11.10.1999. Therefore, the said period, during which the petitioner actually did not serve the respondent, cannot be counted towards his qualifying service for the purpose of granting pension. Regarding not granting of annual increments, it has been stated that as per the recruitment and promotion policy of the respondent Nigam, a directly appointed UDC is required to pass the Departmental Accounts Examination of Ministerial Establishment within a period of two years or within five successive chances, whichever is earlier, failing which he is not entitled for increment after two years. Since the petitioner failed to pass the said Examination within the prescribed period or even during his service tenure from 12.10.1999 to 31.1.2008, he was not entitled for the grant of annual increments. After hearing the arguments of learned counsel for both the parties and going through the contents of the petition as well as the written CWP No. 5263 of 2008 -5- statement, I am of the opinion that this writ petition deserves to be allowed. Undisputedly, the order of removal from service passed against the petitioner was set aside by the Labour Court vide its Award dated 8.9.1995 and the respondent was directed to appoint the petitioner afresh as UDC on the same terms and conditions, upon which he was working prior to his removal from service. Under the said order, the respondent was bound to give appointment to the petitioner afresh in September/October, 1995. However, the respondent did not implement the said order of the Labour Court and decided to challenge the same before this Court by filing CWP No. 3378 of 1996. On 29.7.1996, the interim order of stay of operation of the Award of the Labour Court was vacated with the observation that in the event of the writ petition being allowed, the workman (petitioner herein) will have no claim to continue in service in view of letter of appointment if now issued by the management (respondent herein) in terms of the order of the Labour Court. It was further clarified that it will be open to the respondent not to offer appointment to the petitioner, but in that eventuality, the respondent shall be liable pay salary to the petitioner from the date of order i.e. 29.7.1996 till he is taken back in service under the Award, in the event of the writ petition being dismissed. The respondent in its wisdom decided not to give appointment to the petitioner in terms of the order of the Labour Court. It is further admitted position that the writ petition filed by the respondent was dismissed on 6.10.1998. On account of dismissal of the writ petition, vide order dated 1.5.2000, passed by the respondent, the CWP No. 5263 of 2008 -6- petitioner was paid salary of the post of UDC with effect from 29.7.1996 (date of the interim order passed by this Court) to 11.10.1999 (date of reinstatement of the petitioner), subject to the decision of LPA filed by the respondent. Subsequently, on 13.10.2000, the LPA filed by the respondent against the judgment dated 6.10.1999 was also dismissed. The dismissal of the writ petition and the LPA resulted into coming into force the Award passed by the Labour Court. Thus, the respondent was duty bound to give fresh appointment to the petitioner, on the same terms and conditions, upon which he was working prior to the passing of order of removal from service. If the respondent gave appointment letter to the petitioner on 30.9.1999 and permitted him to join on 12.10.1999, it cannot take benefit of the same and the petitioner cannot be deprived of his right accrued under the Award of the Labour Court. As a fact, the petitioner has received salary from 29.7.1996 to 11.10.1999 and thereafter, he received salary on his regular appointment till the date of his retirement. Therefore, he is to be taken in service of the respondent for the said period. If the said period of service is counted as the qualifying service for the purpose of pension, the petitioner is entitled for pension, as his qualifying service comes to more than 10 years. During the course of arguments, learned counsel for the respondent argued that since vide interim order dated 29.7.1996, passed by this Court, the respondent was given liberty not to give appointment letter to the petitioner, provided the respondent pays salary to him for the said CWP No. 5263 of 2008 -7- period. Therefore, in view of the said liberty, if the appointment letter was issued on 30.9.1999, in pursuance of which the petitioner joined on 12.10.1999, then the respondent has rightly calculated the regular qualifying service of the petitioner for the purpose of pension from 12.10.1999 to 31.1.2008, which is less than 10 years. In my opinion, this contention does not have any force. The respondent cannot be given premium of its inaction. Vide order dated 29.7.1996, this Court clearly vacated the say order and the respondent was supposed to give appointment letter to the petitioner. It was specifically ordered that in the event the writ petition filed by the respondent was allowed, the petitioner will have no claim to continue in service in view of the letter of appointment, if issued by the respondent in terms of the Award of the Labour Court. However, an option was given to the respondent not to offer appointment, but in that eventuality, it was liable to pay salary to the petitioner from the date of the order i.e. 29.7.1996 till he is taken back in service. In view of the said option, the respondent paid salary of the entire period. Therefore, the petitioner is deemed to be in service from 29.7.1996 to 11.10.1999. Thereafter, he joined his service on 12.10.1999 on the basis of the appointment letter issued by the respondent. Thus, in my opinion, there is no justification with the respondent to exclude that period from the qualifying service of the petitioner for the purpose of grant of pension. While doing so, the respondent has illegally denied pension to the petitioner. After considering the arguments of learned counsel for the CWP No. 5263 of 2008 -8- parties on the issue of denial of annual increments to the petitioner, I am of the opinion that the respondent is not justified in denying the said benefit to the petitioner. In clause 4 of the appointment letter, issued to the petitioner on 30.9.1999, it was stated that the appointee will have to qualify the Departmental Accounts Examination for Ministerial Establishment within a period of two years or within five successive chances, whichever is earlier. In case, he fails to qualify the said examination within the prescribed period, his services shall be terminated without notice and without assigning any reason. There is no stipulation in the appointment letter that if the appointee does not qualify the said examination, he will not be entitled for yearly increment. In the written statement, no rule or instruction has been quoted, which empowers the respondent to withhold the benefit of annual increment, in case the employee does not qualify the Departmental Accounts Examination for Ministerial Establishment within the prescribed period. Even during the course of arguments, learned counsel for the respondent could not show any rule, regulation or instruction in this regard. He was not in a position to justify the action of the respondent in not granting yearly increments to the petitioner during his service. Thus, in my opinion, the withholding of yearly increments in case of the petitioner is also without any justification. In view of the above, the instant writ petition is allowed. The respondent is directed to release the pension to the petitioner, while taking the period from 29.7.1996 to 31.1.2008 as his qualifying service for the CWP No. 5263 of 2008 -9- purpose of grant of pension and to calculate the pension and other retiral benefits, while granting yearly increments to the petitioner during his service tenure. After deducting the amount already paid, if any, the remaining amount due to the petitioner, be released with interest at the rate of 6% per annum. No order as to costs. August 03, 2009 ( SATISH KUMAR MITTAL ) ndj JUDGE