Civil Writ Petition No.7212 of 2007. -1- In the High Court of Punjab & Haryana at Chandigarh. Civil Writ Petition No.7212 of 2007. Date of decision:10-3-2008. Bihara Singh. ...Petitioner. Versus The State of Punjab and others. ...Respondents. ... Coram: Hon'ble Mr. Justice Mehtab S. Gill. Hon'ble Mr. Justice K. C. Puri. ... Present: Mr.R. S. Sharma Advocate for the petitioner. Mr.B. S. Chahal, DAG Punjab for respondent Nos.1 to 3. K. C. Puri, J. Judgment. The prayer of the petitioner in this Civil Writ Petition filed under Articles 226/227 of the Constitution of India is for issuance of a issuance of a writ in the nature of Certiorari for quashing the letters dated 19.9.2006 (Annexure P-10) and dated 30.11.2006 (Annexure P- 11) vide which the pension case of the petitioner was returned, as being wholly arbitrary, unwarranted, patently unlawful, contrary to the executive instructions and the law on the point. The averments of the petitioner are epitomized as under:- Civil Writ Petition No.7212 of 2007. -2- The petitioner joined service under the respondents initially as a Cleaner on 1.11.1973. He had been subsequently appointed as Work Charge Truck Driver against a regular and permanent post in the regular pay scale of Rs.110-250 vide order dated 31.5.1974 (Annexure P-1). He had been serving the respondents with complete dedication and devotion. His services had been brought to an end abruptly with effect from 7.4.1980 which gave rise to an industrial dispute under the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The Labour Court held the termination of the services of the petitioner as unlawful, illegal and reinstatement of his services was ordered with continuity of service but without back wages vide award dated 14.12.1994 (Annexure P-2). In compliance with the aforesaid award, he had submitted his joining report to the respondents on 24.4.1995. He was taken back on duty on 20.11.1995. Earlier, they had been adopting dilatory tactics on the plea that they will challenge the award of the Labour Court. The respondents were duty bound to release his salary from the date of submission of joining report till the assignment of duty but they had not released the same. Faced with this situation, he approached the Labour Court, Patiala under Section 33-C(2) of the Act claiming wages for the period from 25.4.1995 to 19.11.1995. The Labour Court held vide order, Annexure P-3, that he was entitled to the wages for the said period along with interest thereon. He had been serving the respondents regularly interruptedly and without any break Civil Writ Petition No.7212 of 2007. -3- continuously till he attained the age of superannuation on 31.7.1997. He was entitled to the re-fixation of his salary in the revised scale of pay because the Labour Court had granted him continuity of service by virtue of award, Annexure P-2. Meaning thereby that he was deemed to have continued in service as if the alleged termination order had not been passed, the same having been declared unlawful and illegal. The respondent No.3, in the light of award passed by the Labour Court and the instructions of the Government, passed order dated 29.5.2001 by virtue of which his pay had been re-fixed with effect from 1.1.1978, 1.1.1986 and 1.1.1996. The respondent No.3, however, observed that he having not been brought on regular cadre by the Punjab Government, no pensionary benefits were admissible to him, being a work charge employee. He got issued a legal notice for the release of retiral benefits. He filed Civil Writ Petition No.8960 of 2002, for the release of pensionary/retiral benefits but the same was dismissed as withdrawn. He again filed Civil Writ Petition No.3914 of 2003. The respondents, in the written statement, alleged that the case for regularization of his services had been rejected vide order dated 28.5.1998. In the light of aforesaid plea, the Civil Writ Petition was dismissed as withdrawn with liberty to file a fresh writ petition raising a challenge to the aforesaid order. He again filed Civil Writ Petition No.7685 of 2005 challenging the said order. The said Civil Writ Petition was disposed off at the motion stage on 17.5.2005 (Annexure Civil Writ Petition No.7212 of 2007. -4- P-6) and the respondent No.2 was directed to take a final decision on his claim for regularization of his services. Since the said order was not implemented, he filed COCP No.954 of 2005. The respondent No.2 produced order dated 1.12.2005 passed by the Superintending Engineer, Construction Circle,PWD, B&R, Sangrur by which his services had been regularized with effect from 1.12.1994 in the pay scale of Rs.950-1800 and the Contempt Petition was accordingly disposed of. It is further pleaded that the State of Punjab issued instructions by way of circular letter dated 31.8.1989 with regard to liberalization of the pensionary benefits on the recommendations of the Third Pay Commission wherein it was laid down that once work charge employee was regularized in service, the entire work charge service will be counted for the purposes of retiral benefits. The State of Punjab again issued instructions dated 16.7.1988 and in clause 8.3 thereof, it was laid down that in respect of matters not provided in the said instructions, the existing rules/instructions on the subject shall continue to be in force and the provisions of the Punjab Civil Services Rules , Volume II shall be deemed to have been amended. The respondent No.3, vide letter dated 19.9.2006, (Annexure P-10),returned his pension case on the ground that he had put in service of 8 years, 3 months and 6 days and he was not entitled to pension as he had put in less than 10 years of qualifying service. His pension case for grant of Civil Writ Petition No.7212 of 2007. -5- pension was again submitted to respondent No.3 who again returned his pension case with some objections. He submitted representations dated 5.2.2007 and 17.2.2007, Annexures P-12 and P-13. It is further averred that the action of respondent No.3 with regard to deduction of period from 19.8.1979 to 24.4.1995 from the qualifying service, is wholly unwarranted, patently illegal, uncalled for, contrary to the provisions of Punjab Civil Services Rules and the instructions, Annexures P-8 and P-9. Respondent Nos.1 and 2 contested the claim of the petitioner and filed written statement. It is pleaded that the petitioner had rendered service as Cleaner from 2-11-1973 to 31-12-1974 and as a Driver from 1-1-1975 to 18-8-1979 and from 25-4-1995 to 31-7-1997 and his total service comes to 8 years and 23 days. Pension was admissible only after rendering qualifying service of 10 years. The petitioner is not entitled to any pension for the break period of 15 years, 8 months and 6 days from 19-8-1979 to 24-4-1995. The petitioner was informed vide various letters that he remained absent. The publication notice that the petitioner was absent was also published by the office of respondent No.2 in the daily newspaper Punjab Kesari, Jalandhar dated 11.2.1980. Gratuity amounting to Rs.9,888/- under the Payment of Gratuity Act, 1972 had been paid for the total service rendered in the office of respondent No.2. The Labour Court had ordered continuity of service of the petitioner but without back wages and has not ordered to Civil Writ Petition No.7212 of 2007. -6- treat the absence period as regular period. The service rendered by the petitioner is less than 10 years. As per rule 3.17 of the Punjab Civil Services Rules Vol.II, a regular Government employee is entitled for pension if he has actually worked for a minimum period of 10 years whereas the service of the petitioner is only 8 years and 23 days. The entire service of the petitioner was erroneously counted and his pay was wrongly fixed. We have heard arguments of counsel for the parties and have gone through the record of the case. So far as the facts of the case are concerned, the same are not much in dispute. The petitioner had rendered service as a Cleaner from 2.11.1973 to 31.12.1974 and as a driver from 1.1.1975 to 18.8.1979. He also worked as a driver from 25.4.1995 to 31.7.1997. The services of the petitioner were terminated on 19.8.1979. The petitioner challenged his termination and the matter was referred to the Labour Court, Patiala under Section 10(1)(c) of the Industrial Disputes Act,1947. The learned Labour Court vide award 14.12.1994 held the termination of the services of the petitioner as illegal and he was held entitled to reinstatement with continuity of service but without back wages. The reason for not allowing back wages by the Labour Court is that demand notice was filed at a belated stage. The petitioner was directed to report for duty within 30 days of the passing of the award. It is not disputed that the award dated 14.12.1994 passed by Labour Civil Writ Petition No.7212 of 2007. -7- Court, Patiala has become final and has not been set aside by any competent Court. The petitioner again moved the Labour Court for his wages for the period from 25.4.1995 to 19.11.1995 and that claim was accepted by the Labour Court vide order dated 2.3.1998. The dispute between the parties is regarding counting of service between 19.8.1979 to 24.4.1995 for the purposes of pension. According to the case of the respondents, the said period cannot be counted for the purposes of grant of pension. The minimum period for grant of pension is admittedly ten years and, according to the respondents, the petitioner has rendered service of 8 years and 23 days. Pension has not been granted on that count. The contentions raised by the respondents are without any substance. The said controversy has been answered by the Hon'ble Apex Court in authority reported as Mohan Lal v. The Management of M/s. Bharat Electronics Ltd.,AIR 1981 Supreme Court 1253 equivalent to 1981 LAB. IU.C.806. In that authority, it has been laid down that in case the termination is not held to be valid, in that case, the workman would be deemed to be in continuous service during the said period. In case the period from 19.8.1979 to 24.4.1995 is taken into account, the deemed service of the petitioner would definitely entitle him to pension as total period exceeds much more than ten years. A Single Bench of our High Court in authority reported as Rajbir Singh Versus State of Haryana, Civil Writ Petition No.16854 Civil Writ Petition No.7212 of 2007. -8- of 1998 has held that where the award of the Labour Court becomes final between the parties and the workman is taken back in the service, the workman would be deemed to be in service from the date he was inducted in the service. No contrary authority has been cited by the counsel for the respondents. Consequently, letters, Annexures P-10 and P-11, stand quashed being arbitrary and unwarranted and the petitioner is held entitled to the grant of pension from the date of his retirement along with interest at the rate of 6% per annum on the delayed payment in respect of payment of arrears. This writ petition is allowed in the above terms. ( K. C. Puri ) Judge March 10th ,2008. ( Mehtab S. Gill ) Jaggi Judge