IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3010 of 2010 (O&M) Date of decision: 22nd September, 2011 The Board of Management, CCSHAU Hisar and others … Appellants Versus A.C. Kapoor … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Naveen S. Bhardwaj, Advocate for the appellants. Mr. P.K. Chugh, Advocate with Mr. D.N. Ichhpilani, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. Present regular second appeal has been preferred by defendant-University to the suit. The suit filed by the respondent-plaintiff for declaration to the effect that action of the appellant-defendant-University to deny the encashment of earned leave to the plaintiff and denial of interest on the accumulations in his GPF account for the period from 1st October, 2000 to 30th September, 2002, is null, void and is liable to be set aside being arbitrary, discriminatory and illegal. Further a mandatory injunction was sought directing the defendant-University to extend the benefit of encashment of earned leave at the credit of respondent-plaintiff before his permanent absorption in the service of CSK Himachal Pradesh Krishi Vishvavidyalaya, Palampur (hereinafter referred to as, ‘HPKV’) and payment of interest on his GPF mentioned above. The Court of Civil Judge (Senior Division), Hisar decreed the suit and directed the defendant-University to release the aforesaid benefits in favour of the respondent-plaintiff with interest @ 6% per Regular Second Appeal No.3010 of 2010 (O&M) annum. The plaintiff was also held entitled to interest on delayed payment @ 6% per annum in respect of pro-rata pension and terminal gratuity. Present appellant-defendant-University, aggrieved against the judgment rendered by the trial Court, filed an appeal. The Court of Additional District Judge (Fast Track Court), Hisar had dismissed the same. Hence, the present regular second appeal. Briefly stated, respondent-plaintiff had pleaded that he was working as a Professor in the Department of Foods and Nutrition and Dean, College of Home Sciences in Chaudhary Charan Singh Haryana Agricultural University, Hisar (hereinafter referred to as, ‘the University’). The respondent-plaintiff joined HPKV on deputation on 1st October, 1996 and worked there in that capacity upto 30th September, 1999. Thereafter, on 1st October, 1999 he was permanently absorbed in HPKV. The permanent absorption of the respondent-plaintiff from the University to HPKV was approved by defendant No.2, i.e. Vice Chancellor of the University vide letter dated 30th October, 1999 issued by Registrar of the University. In the said letter following terms and conditions were incorporated: “… … … a) Date of effect The permanent absorption shall have the effect from 1.10.99 (F.N.) b) CPF/Gratuity On his permanent absorption in HPKV, Palampur Dr.A.C. Kapoor shall be eligible for pro-rata payment of pension and also payment of terminal gratuity to be remitted to HPKV based on the length of his qualifying service under the HAU till the date of his permanent absorption in HPKV as admissible under the rules applicable to employees of the HAU in force on the above mentioned date. c) Limitation as to the total amount of gratuity 2 Regular Second Appeal No.3010 of 2010 (O&M) The total gratuity admissible in respect of the service rendered under HAU and that under HPKV shall not exceed the amount that would have been admissible had Dr.Kapoor continued in HAU service and retired on the same pay which he drew on retirement from HPKV, Palampur. d) Effect of liberalization of CPF/Gratuity rules after absorption Any further liberalization of pension-cum- gratuity scheme decided upon by the HAU in respect of its employees and having effect from a date after the date of absorption of the officer in HPKV, Palampur will not be extended to him. e) Effect of resignation If Dr.Kapoor resigns from HPKV, his resignation for purpose of these orders will be treated as resignation from HAU service, entailing forfeiture of earlier service under HAU and loss of terminal benefits including gratuity under these rules. f) The earned leave and HPL at the credit of Dr.Kapoor will be intimated to the HPKV Palampur for carry over to his leave account as per rules of that University. However, it is made clear that this University will not discharge any financial liability on account of any leave to HPKV, Palampur.” In the suit, a grievance was made by the plaintiff that the defendant-University was required to pay pro-rata pension and death- cum-retirement gratuity based on the length of his qualifying service rendered in the defendant-University. Furthermore, the plaintiff was entitled to the benefit of encashment of earned leave which had accrued to him while discharging duty in the defendant-University and interest on the accumulations in his GPF account No.4510 for the period from 1st October, 2000 to 30th September, 2002. 3 Regular Second Appeal No.3010 of 2010 (O&M) Upon issuance of notice of the suit, defendant-University filed written statement in which preliminary objections were raised and it was stated that the suit was false, frivolous and vexatious, and was liable to be dismissed with costs under Section 35-A of CPC. It was further stated that no cause of action had arisen to the plaintiff as he was not entitled to the benefit of encashment of earned leave on his quitting the service of the University. He was only entitled for carrying over leave balance to his credit at the time of quitting the University and the same was duly transferred to his new employer. Furthermore, GPF accumulations to the credit of plaintiff with interest upto 12 months of his quitting service which was admissible under the rules was transferred to his new employer as per the request of the plaintiff and under no rules he was entitled to interest on the transfer of pro-rata pension and death- cum-retirement gratuity transferred to the new employer and the amount, if any, is to be payable by the new employer. However, on merits it was admitted that the plaintiff was an employee of the appellant-defendant-University and he was sent on deputation and thereafter, he was permanently absorbed in HPKV. The trial Court after conclusion of the pleadings formulated following issues: “1. Whether the denial of benefit of encashment of earned leave to the plaintiff by the defendant university through letter No.Admn.F.1/2002/S.5/13440-41 dated 23.12.2002 and denial of interest on the accumulations in GPF account to the plaintiff by the defendant through letter No.CAUH/P2/2002/7710-12 dated 8.10.2002 are illegal, null and void and are liable to be set aside? OPP 2. Whether the plaintiff is entitled to mandatory injunction directing the defendants to release the aforesaid benefits in favour of the plaintiff? OPP 4 Regular Second Appeal No.3010 of 2010 (O&M) 3. Whether the plaintiff is entitled to the interest on the delayed payment as prayed for? OPP 4. Whether suit is false, frivolous, and vexatious and is liable to be dismissed with costs under Section 35-A C.P.C.? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? OPD 7. Whether the suit is time barred? OPD 8. Whether the plaintiff has not come to the Court with clean hands? OPD 9. Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD 10. Whether the plaintiff has no locus standi to file the present suit? OPD 11. Whether the suit has not been signed and verified as per amended provisions of CPC? OPD 12. Relief.” The plaintiff examined three witnesses, himself appeared as PW-3 and placed on record various documents as Ex.P1 to Ex.P16. Similarly, defendant-University led its evidence and placed on record various documents as Ex.D1 to Ex.D7. In rebuttal, the plaintiff tendered documents Ex.P17 to Ex.P19 and concluded rebuttal evidence. Issues No.1 to 3 were decided together by the trial Court. Before the trial Court, both the sides advanced arguments to interpret the instructions issued by the Finance Department of State of Haryana on 17th March, 1987. These instructions were consolidated under the heading ‘Transfer of Haryana Government Employees’. The trial Court has held that the instructions issued by the State of Haryana also covered the autonomous bodies of other Governments, i.e. Universities, 5 Regular Second Appeal No.3010 of 2010 (O&M) in para No.12 of the said instructions. The Court further held that the averment made by appellant-defendant that no request for transfer of GPF was received from the respondent-plaintiff, was factually incorrect as the plaintiff vide his letter dated 5th October, 2001 Ex.P10 had specifically requested defendant No.4 to the suit, i.e. the Comptroller of the University to transfer his GPF along with other retiral benefits to HPKV. The Court further relied upon the testimony of Manphul Singh PW-2, who admitted in his cross-examination that the defendant- University had received the request of the appellant in the office of Comptroller on 31st October, 2001 and the request of HPKV was also received in his office on 25th February, 2002. The trial Court has held that S.L. Verma DW-1 also admitted receipt of both these documents in his cross-examination. The trial Court returned its finding to the following effect: “17. … … … It is admitted fact that the plaintiff had previously been working as professor in the Department of Foods and Nutrition and Dean College of Home Sciences in the defendant University. The CSK Himachal Pradesh Krishi Vishvavidalaya, Palampur had borrowed the services of the plaintiff on deputation for the period from 01.10.1996 to 30.9.1999. The plaintiff was permanently absorbed in the CSK HPKV, Palampur with effect from 01.10.1999. It is also admitted that deputation is transfer on a temporary basis from one Institution to another Institution. It is also admitted that permanent absorption of the plaintiff from the defendant university to the CSK HPKV, Palampur was the permanent transfer. The only point in dispute was that it is the stand of the plaintiff that the defendant university was required to pay pro-rata pension and death-cum-retirement gratuity based on the length of his qualifying service rendered under the defendant university. The defendant university was required to pay a lump sum amount equal to 6 Regular Second Appeal No.3010 of 2010 (O&M) leave salary for the earned leave due to the plaintiff on the date of his permanent absorption as was a retiral benefit. It is the stand of the plaintiff that after request to the defendant university the defendant university had paid Rs.4662/- whereas the Annual Statement of GPF accumulations for the year ending March, 2002 showed that the total amount available in his GPF account was to the tune of Rs.5,47,543/-. The amount of pro-rata gratuity were sent by the defendant university through the parent department of FO and Nutrition in July, 2002 though the permanent absorption of the plaintiff had been approved by the defendant No.2 on 30.10.1999 i.e. approximately after three years. Therefore, the plaintiff is entitled to interest for the delayed payment of these retiral benefits.” The Court also rejected the contention of the defendant that the plaintiff had not retired from the defendant-University as he was permanently absorbed in HPKV with effect from 1st October, 1999, and therefore, he was not entitled to the benefits which will accrue to a retired employee, and thus, he is not entitled to the interest on transfer of pro-rata pension and death-cum-retirement gratuity, a liability which is transferred to his new employer. The Court held that permanent absorption means permanent transfer and it will not amount to quitting of service and thus, the instructions issued by the State Government dated 7th January, 2002 being subsequent event were not effective retrospectively. The trial Court further held that as per the Leave Encashment Rules of the State Government Ex.P17 and the Leave Encashment Rules of the Central Government Ex.P18, the plaintiff is entitled to the benefit of leave encashment to the extent of earned leave at his credit in the defendant-University at the time of his permanent absorption in the service of HPKV. The Court held that even though the 7 Regular Second Appeal No.3010 of 2010 (O&M) employee had 268 days earned leave at his credit, he is only entitled to the benefit to the extent of 216 days as he got the benefit of 84 days from HPKV. Thus, issues No.1 to 3 were decided in favour of the plaintiff and against the defendants. The remaining issues were also decided against the defendants and in favour of the plaintiff, and the suit was decreed to the extent as stated earlier. The lower appellate Court after appreciating the oral as well as documentary evidence brought on record dealt with the arguments raised by the present appellant threadbare and affirmed the findings given by the trial Court. I have heard Mr. Naveen S. Bhardwaj, Advocate for the appellants. He has urged that once the respondent-plaintiff was permanently absorbed in HPKV, it was severance of relationship between the employer and employee so far as the appellants- defendants are concerned. Therefore, it will tantamount to quitting of service of the appellant-University and the respondent-plaintiff will not be entitled to the benefits to which a retired employee of the University is entitled. It is further submitted that the instructions issued by the State Government will be applicable only to those employees who have been absorbed in the autonomous bodies in the State of Haryana and in any other State. However, counsel for the appellant during the course of arguments has failed to dislodge the observation made by this Court that it is with the permission of the appellant-University that the respondent- plaintiff-employee had joined HPKV and they had also approved his permanent absorption in HPKV. Therefore, all those benefits to which a State Government employee is entitled on absorption with any other organization of the State, shall also flow to the respondent-plaintiff. Furthermore, the Government instructions have been rightly interpreted 8 Regular Second Appeal No.3010 of 2010 (O&M) by the courts below and the benefit which has to accrue to the employee has been granted to the respondent-plaintiff. The proposed substantial questions of law in para No.19 of the grounds of appeal in no way arise for consideration of this Court, as essentially they remain questions of fact and in terms of concurrent findings returned by both the courts below, this Court finds that the questions so formulated are neither questions of law nor substantial ones. Hence, no interference is warranted in the present appeal and the same is dismissed with no order as to costs. [KANWALJIT SINGH AHLUWALIA] JUDGE September 22, 2011 rps 9