R.S.A. No. 1498 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1498 of 2006 Date of decision: 12-8-2010 Kamla Devi ......... Appellant Vs Engineer in Chief and others Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. N.K.Malhotra, Advocate, for the appellant Mr. K.C.Bhatia, Additional Advocate General, Haryana HARBANS LAL, J. This appeal is directed against the judgment/decree dated 31.10.2005 passed by the court of learned Additional District Judge, Rohtak whereby he dismissed the appeal preferred by Kamla Devi plaintiff against the judgment/decree dated 6.1.2005 rendered by the court of learned Additional Civil Judge (Senior Division), Rohtak vide which he dismissed the suit of the plaintiff. The basic terra-firma with brevity is that Bhim Singh husband of the plaintiff was employed through Service Selection Board Haryana as Draftsman in J.L.N. Mechanical Division, Rohtak in the month of October, 1976. He died on 20.4.1979. Thereafter, the plaintiff was given employment as peon as per rules on ex-gratia basis. She joined her duties as such on 1.10.1980. She was not given family pension and other pensionary benefits after the death of her husband. The J.L.N. Feeder Mechanical R.S.A. No. 1498 of 2006 2 Division was closed and it was renamed as Anti-water Logging Division, Rohtak and the record of this Division was transferred to Rohtak Drainage Division, Rohtak. This Division was also closed and renamed as Gohana Water Service Division Gohana to which the entire record was shifted. The service book of her husband alongwith other record was also sent to Gohana Office. She made various written requests to the defendants for grant of family pension and other pensionary benefits of the service rendered by her husband, but to no effect. In reply of the last letters dated 30.8.1998, 29.12.1998, 25.2.1999, Executive Engineer, Gohana Water Services Division, Gohana informed her vide his letter No. 793/25 dated 8.3.1999 that all the record prior to re-organization of that Division had been handed over to Rohtak Water Services Division, Rohtak. The service book of the deceased was not available in that office. She was advised to contact Water Service Division, Rohtak for further action. She approached the said office, but nothing was done by the said office. On these allegations, this suit has been filed for grant of mandatory injunction directing to pay family pension and pensionary benefits alongwith interest @ 18% per annum on the delayed payment to the plaintiff on account of death of her husband. The defendants in their joint written statement have inter alia pleaded that the suit of the plaintiff is time barred and the same is not maintainable in the present form and is bad for non-joinder of the necessary parties and for want of proper court fee; that civil court had no jurisdiction to try the suit. However, it has been admitted that the husband of the plaintiff had served as Draftsman in J.L.N. Mechanical Division, Rohtak with effect from October 1976 to 20.4.1979 and after his death, the plaintiff R.S.A. No. 1498 of 2006 3 was appointed as peon under ex-gratia scheme. As alleged, she is not entitled for family pension according to service rule 2.6 of the Punjab Civil Service Rules Volume II because her husband had worked only for a limited period of two years six months and twenty two days. However, shifting of the office of J.L.N. Mechanical Rohtak Division, Rohtak to Bhiwani and Gohana from time to time has been admitted. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to get family pension alongwith other benefits with interest @ 18% per annum as alleged?OPP 2. Whether the suit is time barred?OPD 3. Whether the suit is not maintainable in the present form?OPD 4. Whether this court has no jurisdiction to try and decide the present suit?OPD 5. Whether the suit is bad for want of mis-joinder or non-joinder of the necessary parties?OPD 6. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?OPD 7. Relief. After examining the evidence and hearing the learned counsel for the parties, the learned trial Court dismissed the suit as noticed at the outset. Feeling aggrieved therewith, the plaintiff went up in appeal, which was also dismissed by the court of learned Additional District Judge, Rohtak as noticed at the outset. Being undaunted and dissatisfied with the judgments recorded by both the courts below, the plaintiff has preferred R.S.A. No. 1498 of 2006 4 this appeal. The following substantial questions of law arise for determination in this appeal:- 1. Whether the appellant is entitled to family pension according to law? 2. Whether Rule 6.17(5) of the Civil Services Rules, family pension scheme has been complied by the appellant or not? 3. Whether delay has concern in filing the suit for claiming family pension? I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. N.K.Malhotra, Advocate on behalf of the plaintiff- appellant urged with great eloquence that the alleged delay in filing the suit is neither intentional nor due to the fault of the plaintiff-appellant. In fact, she has been approaching the respondents continuously by making written requests to fix the family pension and other pensionary benefits and to pay the same, but all the times, they avoided to do the needful. It is well settled that a welfare State cannot deny the right to these claims of a citizen on any technical ground. Admittedly, the husband of the plaintiff-appellant had completed more than one year continuous service without any break. As such, she is entitled to the relief claimed. Her case was dismissed merely on two grounds, one was regarding delay in filing the suit and the other was that two months salary or Rs.5000/- had not been deposited to avail family pension. It was the duty of the department/respondent to pursue the matter, when the plaintiff-appellant had already deposited a sum of Rs.5000/-. However, no doubt, she could not produce the documents with regards to R.S.A. No. 1498 of 2006 5 the deposit of this amount. The respondents-defendants have taken the benefit of not producing such documents. The plaintiff-appellant has fulfilled the requirements of Rule 6.17(5) of Punjab Civil Service Rules regarding family pension scheme. To fortify his contentions Mr. Malhotra has relied upon Surjit Singh Vs. State of Punjab and others 1997(3) Recent Services Judgments 572, Smt. Prem Wati Vs. State of Haryana and others 1999(4) Recent Services Judgments 482, Subedar (Hony.Lt.) Gurdip Singh (Retd.) Versus Union of India and others 1997(3) Recent Services Judgments 591 and Pepsu Road Transport Corporation Versus Balwant Singh 2007(2) Recent Services Judgments 518. Mr. K.C. Bhatia, learned Additional Advocate General, Haryana appearing on behalf of the defendants-respondents has countered these arguments by urging with a good deal of force that it has been rightly held by both the courts below that due to non-compliance of Rule 6.17(5) ibid, the plaintiff-appellant is dis-entitled to claim family pension and that the suit having been filed after about a decade is hopelessly barred by limitation. He has sought to place abundant reliance upon Union of India and another Vs. Punjab Singh and another 2003(4) Recent Services Judgments 752(SC). I have given a deep and thoughtful consideration to the rival contentions. Ex. D-1 the photo copy of Rule 6.17(2) contained in Chapter VI of Punjab Civil Services Rules Volume II reads as under:- “(2) The Scheme will be administered as below:- (i)The family pension will be admissible in case of death while R.S.A. No. 1498 of 2006 6 in service or after retirement if at the time of death the retired Government employee was in receipt of a compensation, invalid, retiring or superannuation pension. In case of death while in service, the Government employee should have completed a minimum period of one year of continuous service, without break. The family pension will not be admissible in cases of death after retirement, if the retired employee at the time of death was in receipt of gratuity only. (ii)The term 'one year' continuous service used in sub-clause (i) is inclusive of permanent and temporary service in a pensionable establishment but does not include periods of extraordinary leave, boy service and suspension period unless that is regularized by the competent authority. (iii)In the cases of persons who are transferred to Punjab State from the Central Government or other State Governments and in whose case it has been agreed to count their previous service for pension, the Family Pension Scheme would be applicable in the event of their death/retirement without putting in one year continuous service under the State Government, if their total service at the time of death (inclusive of service rendered under the previous Government) exceeds one year.” Rule 6.17(5) Ex.D-2 in so far as is relevant for the decision of this case reads as under:- “(5) Every employee eligible to the benefits of the above R.S.A. No. 1498 of 2006 7 Scheme will be required to surrender a portion of gratuity, where admissible, equal to his two months' emoluments or 'pay' as the case may be, subject to a maximum of Rs.5,000/- . The temporary Government employee will, however, be required to surrender two months' pay or emoluments, as the case may be.” There is no gainsaying the fact that Bhim Singh, the deceased husband of the plaintiff had put in more than one year of service. Thus the requirement of Rule 6.17(2) ibid has been fulfilled. It is own case of the plaintiff-appellant that her husband had breathed his last on 20.4.1979 and on his death, she was given the employment as a peon as per rules on ex gratia basis. In view of Rule 6.17(5) ibid, she being a temporary government employee was required to surrender a portion of gratuity equal to two months emoluments or pay subject to a maximum of Rs.5000/-. In the grounds of appeal, she has mentioned that “it was the duty of the department/respondent to pursue the matter when the appellant had already deposited a sum of Rs.5000/-. No doubt appellant could not produce documents regarding depositing Rs.5000/- but the above said amount was deposited by the appellant, but the respondent department has taken the benefit by not producing the above said documents.” This plea does not find its roots in the plaint or the replication or in the evidence tendered by the plaintiff as PW-1. The same has been taken up for the first time before this Court. If in adherence to the provisions of Rule 6.17(5) ibid, she had deposited the amount of Rs.5000/- with the department-respondent then in all probabilities, she would have been issued a receipt which could have been produced in the evidence. In the absence of such evidence, there can R.S.A. No. 1498 of 2006 8 be no escape from the finding that to gloss over the requirements of the said rule, she has taken up the above said plea, which having gone unsubstantiated by evidence cannot be accepted. If she had deposited this amount, she would have produced the receipt, while she was being examined as PW-1. In the given circumstances, it would be going too far to say that the said amount in compliance with the provisions of afore-quoted rule was deposited. Much capital has been sought to be made out of Balwant Singh's case (supra) wherein this court has held that “In the light of the aforesaid findings, since the scheme was never circulated and got noted by the plaintiff, he cannot be denied pension on account of the fact that he had not deposited the balance amount of loan taken by him from out of his Contributory Provident Fund. Had it been brought to his notice he would certainly have deposited a sum of Rs.4,999/- outstanding against him.” It is manifestly clear from these observations that in consequence of the non-circulation of the pension scheme, it was held that the plaintiff cannot be denied pension and that if such scheme had been circulated amongst the employees, the plaintiff would have certainly deposited the said amount outstanding against him. In the instant one, it is admitted case of the parties that the plaintiff-appellant has been serving with the defendants since 1.10.1980. That being so, on enquiry from the office, she might had become aware of the fact that without compliance of the stated rule, she cannot lay claim on family pension. Thus, the facts of the instant case, are distinguishable from Balwant Singh's case (supra). As a result of her failure to comply with the requirements of afore-quoted rule, she is held disentitled to claim family pension. Sequelly, the first and second questions R.S.A. No. 1498 of 2006 9 of law are decided against the plaintiff-appellant and in favour of the defendants-respondents. It is an admitted fact that the suit was filed on 19.8.1999 though the husband of the plaintiff-appellant had expired on 20.4.1979. In Surjit Singh's case (supra) the Division Bench of this Court has observed that “it is true that the petitioner had retired from service on March 31, 1976 (wrongly mentioned as April 1, 1976, in the writ petition and the written statement). It also appears that the first representation was submitted by the petitioner on January 8, 1988. Still the fact remains that the petitioner is not being given the benefit of the service rendered by him in District Board schools towards the computation of his pension. He continues to suffer the loss on this account. Still further, the Government is under a statutory obligation to settle the retiral benefits of an employee. If he is wrongfully denied certain benefits, the State cannot be permitted to take advantage of its own wrong and plead that the claim is barred by limitation. By the lapse of time, no third party rights have accrued.” It is deducible from these observations that despite making representations by the writ petitioner, the service benefits were not being given to him. In the present one, the plaintiff-appellant while appearing as PW-1 has no where stated that she had been making representations to the defendants-respondents for grant of family pension. Had she really made such representations, she would have left no stone unturned in producing the same in her evidence. Thus, the facts of Surjit Singh's case (supra) are poles apart from the one in hand. In Smt. Prem Wati's case (supra), it has been observed that “Husband of the petitioner died while in service on 26.6.1976. He was earlier appointed to R.S.A. No. 1498 of 2006 10 the post of Driver on 3.3.1973. It could not be disputed during the course of arguments that as per Rule 6.17(2)(i) of Punjab Civil Service Rules, Volume II, widow of a deceased employee is entitled to family pension if the employee had been in service for a period of one year. Nothing at all could be mentioned, during the course of arguments, that may come in the way of the petitioner in giving family pension. A direction is, thus, issued to the respondents to calculate the pension payable to the petitioner under the rules and make over the same to her as expeditiously as possible and preferably within four weeks from today. Inasmuch as family pension has been denied to the widow for over a period of about 17 years, as pension scheme became applicable to the department, where husband of the petitioner was working only in 1982 as also for the reason that there is no justification for having denied the family pension to her in view of this Court, petitioner is entitled to interest @ 10% per annum.” It is abundantly clear from these observations that there was no hurdle in allowing the grant of family pension to the petitioner, whereas in the case at hand, as already noticed, the requirements of Rule 6.17(5) ibid have not been fulfilled by the plaintiff- appellant. Thus, no mileage can be driven by her from the case of Smt. Prem Wati's case (supra). In Subedar (Hony.Lt.) Gurdip Singh(Retd.)'s case (supra), it has been observed that “The petitioner was admittedly discharged from the Army on September 5, 1969. His claim for disability pension had been rejected vide order dated April 24, 1970. He had filed an appeal after many years which was rejected vide order dated December 12, 1977. The two representations submitted thereafter were rejected vide orders dated June 8, 1978 and March 11, 1981. Even thereafter, the R.S.A. No. 1498 of 2006 11 petitioner had waited for 15 years, before approaching this Court. Apparently, the petition is highly belated. However, the courts have been reluctant to reject a citizen's claim for pension on the ground of delay. The obligation to pay pension is that of the Government. If either on account of ignorance or on account of some other reason, the citizen does not approach the Court, the result is that the Government retains money belonging to him.” It follows from these observations that in that case too, the petitioner had been making representations from time to time and furthermore, there was nothing to debar the writ petitioner from claiming the pension, whereas herein, as has been said over and over again, the plaintiff-appellant did not comply with the provisions of Rule 6.17(5) ibid. So, in my view, the observations rendered in Subedar (Hony.Lt.) Gurdip Singh(Retd.)'s case (supra) are also not helpful to the plaintiff-appellant to bring her case within limitation. In Punjab Singh and another's case (supra), the respondent Punjab Singh had applied for Freedom Fighters Pension. It was held by the Hon'ble Supreme Court that “A civil suit filed more than 16 years after the date of the accrual of the cause of action was clearly barred by time. Under Section 3 of the Limitation Act, 1963, the trial Court was bound to dismiss the suit as having been filed after the prescribed period of limitation. The decree could not have been maintained by the first appellate Court or the High Court.” In the case at hand, the plaintiff-appellant being a widow of the deceased had got appointment as peon on ex-gratia basis scheme in 1980. She being an employee of the same department would have enquired about the procedure of applying for family pension. During that course, she would have come to know that unless she fulfills the R.S.A. No. 1498 of 2006 12 requirements of the rule under discussion, she cannot get family pension. Cause of action is a bundle of facts. Recurring cause of action can be claimed only when the claimant initially fulfills the legal requirements, which is lacking in this case. The claim regarding family pension would have become due only on compliance of the rule. So, it cannot be said that she has been denied family pension wrongfully. In this scenario, the mind- boggling delay in filing the suit cannot be ignored on any ground. For the reasons indicated hereinbefore, the third substantial question of law also stands determined against the plaintiff-appellant and in favour of the defendants-respondents. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. (HARBANS LAL) JUDGE August 12, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No