CWP No. 19877 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 19877 of 2010 Date of decision:29.08.2011 Ruldu Singh (Deceased) through his L.R. Kaur Singh ......Petitioner Vs. State of Punjab and another ...Respondent CORAM:- HON'BLE MS.JUSTICE RITU BAHRI. PRESENT: Mr. S.K. Sud, Advocate for the petitioner. Mr. Praveen Chander Goyal, Addl. AG Punjab. **** RITU BAHRI, J. Petitioner is seeking writ of Mandamus directing the respondents to release the due amount of earned leave due to Ruldu Singh (deceased). Ruldu Singh had filed a Civil Writ Petition No. 12832 of 2007 for release of retiral benefits i.e. gratuity, GIS, earned leave, arrears of pension and DA increase etc. He had retired as driver from Punjab Transport Department on 28.02.2005. Some departmental proceedings were initiated against him, causing loss of Rs.48,120/- which the Department had paid as compensation, awarded by Motor Accidents Claims Tribunal. The Motor Accidents Claims Tribunal has decided the case on 27.02.2007 and Ruldu Singh died on 07.01.2008. Writ petition was disposed of on 23.02.2010 by this Court by giving directions to the respondents to release the retiral amount after making the recovery which had been passed during his life time. Since, the retired employee expired before any effective order of punishment was passed in the enquiry, the enquiry proceedings stood abated. In the reply, it has been stated that CWP No. 19877 of 2010 -2- amount due Rs.7114/- on account of leave encashment for the earned leave has been paid on 23.02.2010 to his legal reprentative namely Kaur Singh. Kaur Singh has submitted pension papers. After processing, the same have been sent to the Government for releasing pension and gratuity to Kaur Singh. Recovery of Rs.34,117/- has not been made from the pension benefits as no formal orders regarding recovery has been passed against the deceased. This amount has not been deducted from the pension amount payable to the legal heirs of the deceased-Rulda Singh. Since, the petitioner had not opted for new rules, benefit of leave encashment is being denied on the ground that when new rules came into operation, petitioner had not given his option for new rules relating to leave encashment. In view of these instructions, dated 24.11.1988, Ruldu Singh-petitioner is not entitled for encashment of the earned leave. In the written statement respondents have taken stand that new rules had been duly notified and the petitioner did not exercises his option despite due notice given to him. The benefit of 300 days of leave encashment is not admissible to the petitioner. This argument is not available with the respondents as in the instructions (Annexure R-I), it has been specifically mentioned that the option had to be taken from the employee by the Department whereon the employee could agree or disagree with the new rules, merely by putting a notice, the mandate of the instructions is not made out. If employee still did not choose to submit his option then it was to be presumed that he has agreed to adopt new rules. In the present case, the petitioner was not informed about the instructions therefore a presumption can not be drawn against him that he will be governed by the new rules. The Hon'ble Division Bench of this Court of Dilwar Singh Vs. Haryana Power Generation Corporation Ltd. reported in 2006(3) RSJ 689 has considered the similar situation in which a circular was issued but was not notified and the employee was held CWP No. 19877 of 2010 -3- entitled for the benefit for grant of pension. Relevant part of para no.6 is reproduced here as under:- “The claim of the petitioner for the grant of pensionary benefits is based on the instructions dated 06.08.1993 (Annexure P-1) and clarification dated 06.08.1994 (Annexure P-2). In terms of the instructions dated 06.08.1993 (Annexure P-1), the Haryana Government notification dated 04.02.1992 with regard to the counting of service rendered by workers in work-charge capacity towards pensionary benefits scheme was adopted subject to conditions mentioned therein which inter alia include that an employee on regularization from work-charge service to regular service is to submit an option within a period of three months from the date of regularization or from the date of issue of the circular, whichever is later as to whether he/she intends to count the period of work-charge service rendered by him/her towards pensionary benefits or intends to continue to be a member of EPF. In case the option is not given within the stipulated period of three months, it would be presumb\ed that he/she intends to continue to be a member of EPF. Further, that in case an employee opts for pensionary benefits he/she is to refund the entire amount of employer's share of contribution alongwith interest thereon towards their EPF in lump-sum for crediting to the Board's (HSEB) account. The employee's contribution alongwith interest has be deposited with the board (HSEB) for crediting to his/her General Provident Fund ('GPF'-for short). In terms of the subsequent instructions (Annexure P-2) certain clarifications were given on points that had been raised. One of the queries that was clarified was with regard to the time limit of three m onths fixed by the Board for submitting the option which expired on 5.11.1993 and there was a demand for extenskion of time limit for exercising the option. It was clarified that a period of three months from the date of issue of the clarification may be allowed to the employees to exercise their option for availing the pensionary benefits to those who could not avail this opportunity earlier. In both the circulars dated 06.08.1993 (Annexure P-1) and 09.08.1994 (Annexure P-2), it has been provided that this may be got noted from all the CWP No. 19877 of 2010 -4- employees who were to acknowledge the receipt of the letter. The petitioner claims that despite the said requirement of getting the instructions noted from the employee the same were not got noted front him. The claims of the petitioner in this regard for counting of work-charge service towards pensionary benefits is dependent on the fact whether he can be brought on to the pension scheme despite the fact that he has not given his option within the stipulated time as fixed in terms of the circular issued by the HSEB on 06.08.1993 (Annexure P-1) and 09.08.1994 (Annexure P-2). This relief in fact has been granted in other caes by this Court. A Division Bencvh of this Court in Mahinder Singh Vs. Executive Engineer and another,2005(4)SCT 633, to which one of us (S.S. Nijjar.J.) was a member, held that unless it is established that the circular issued for exercise of option was brought to the notice of the employee he cannot be denied from exercising the same in time merely because he did not do so immediately when the circular was issued. In the case of Lilu Ram Vs. State of Haryana, (CWP No.2476 of 1997), decided on 9.10.1997, a Division Bench of this Court considered the case where the employee had not given his option for adopting the pensionary scheme and had failed to comply with the conditions imposed therein that is depositing the employee's share of contribution towards G.P.F with interest upto date of award. It was held by this Court that the respondents therein had not placed any material on record to show that the instructions issued had been got noted in writing from the petitioner in the said case. In the absence of any such material it ws held that it cannot be assumed that the petitioner while in service knew about the contents of the instructions that had been issued. It was noticed that the circular in question specifically provided that: “these instructions” may please be got noted from the employees and acknowledge the receipt of the letter.” In Hakam Singh, Driver vs.Executive Engineer, HVPNL and another, (CWP No. 12758 of 2000), decided on 29.05.2002 a Division Bench of this Court directed the respondents to allow the petitioners therein to avail the benefit of pensionary scheme as there was no proof that they were ever served on CWP No. 19877 of 2010 -5- the basis of instructions regarding switching over to the pensionary scheme. In Darshan Singh vs. Chief Accounts Officer, (CWP No.2402 of 1997), decided on 27.08.1997 a Division Bench of this Court allowed the writ petition for computation of the service rendered by the petitioner therein towards retiral benefits. The claim of the petitioner was resisted as he had not exercised his option to claim the benefit of service towards pension. It was, however, held that the amount deposited by the employer from the date of the appointment of the petitioner therein till his retirement alongwith interest shall be refunded by the petitioner. In Ram Dia vs. Uttar Haryana Bijli Vitran Nigam Ltd. and another, 2005(4) SCT 387, a Division Bench of this Court in a case regarding initmation to employee to opt for pension from EPF held that where there was no material to show that the circular for option was got noted in writing from the petitioner therein, it is to be inferred that the petitioner had no knowledge of the circular. Accordingly directions were issued to the authority to take the options and grant pension as per rules. In the facts of the present case the instructions (Annexure R-I) dated 24.11.1988 were not notified to the petitioner. The new rules cannot be made applicable. Petitioner is entitled to the benefit of 300 days of earned leave under the old rules. The Civil Writ Petition is allowed. It is directed that within a period of four months, earned leave alongwith 6% interest be paid from the date due till it paid. August 29, 2011 (RITU BAHRI) harjeet JUDGE