CWP No.16697 of 1998, CWP No.16542 of 2001, [1] CWP No.18934 of 2001 & CWP No.9656 of 2004 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) C. W. P. No. 16697 of 1998 S.P.Wadhawan ....Petitioner v. Haryana Vidyut Parsaran Nigam and others ....Respondents ... (2) C. W. P. No. 16542 of 2001 P.K.Srivastava ....Petitioner v. Haryana Vidyut Parsaran Nigam and others ....Respondents ... (3) C. W. P. No. 18934 of 2001 B.S.Kanwar ....Petitioner v. Haryana Vidyut Parsaran Nigam and others ....Respondents ... (4) C. W. P. No. 9656 of 2004 O.P.Katyal ....Petitioner v. Haryana Vidyut Parsaran Nigam and others ....Respondents Date of Decision: 12 – 8 - 2010 CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** CWP No.16697 of 1998, CWP No.16542 of 2001, [2] CWP No.18934 of 2001 & CWP No.9656 of 2004 Present: Mr.D.R.Bansal, Advocate and Mr.Jagat Narain, Advocate for the petitioners. Mr.Mohnish Sharma, Advocate for respondents No.1 and 2 in CWP Nos.16697 of 1998, 16542 of 2001 and 18934 of 2001. Mr.Himanshu Raj, AAG, Haryana for respondent No.3 in CWP Nos.16697 of 1998, 16542 of 2001 and 18934 of 2001. Mr.Mukul Aggarwal, Advocate for the respondents in CWP No.9656 of 2004. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Counsel for the petitioners state that on facts, law points and arguments advanced, the Civil Writ Petition Nos.16542 of 2001, 18934 of 2001 and 9656 of 2004 are not different than Civil Writ Petition No.16697 of 1998, except that the amount and the date of retirement may be different. Therefore, counsel pray that all the four writ petitions be decided together. Thus, this common order shall dispose of all the four writ petitions. Facts as enumerated in Civil Writ Petition No.16697 of 1998 are taken for facility of reference. S.P.Wadhawan, who retired as an Assistant Engineer has preferred the present writ petition with a prayer that the respondents, Haryana Vidyut Parsaran Nigam (hereinafter to be referred as, `HVPN'), Haryana Power Generation Corporation (hereinafter to be referred as, `HPGC') and the State of Haryana be directed to restore commuted pension from the date the full value of commuted pension has been recovered including notional interest. It is further prayed that impugned order dated 20.2.1998, Annexure P9, be also quashed. It is also prayed that CWP No.16697 of 1998, CWP No.16542 of 2001, [3] CWP No.18934 of 2001 & CWP No.9656 of 2004 consequential benefits and arrears thereon becoming due and payable with 18% interest per annum, be also ordered in favour of the petitioner. A perusal of impugned order dated 20.2.1998, Annexure P9, reveals that the Haryana State Electricity Board had referred the matter for clarification to the State of Haryana `whether the instructions issued by the Government of India in pursuance of Hon'ble Supreme Court judgment are to be adopted by the Government of Haryana or not'?. Government of Haryana declined to adopt the instructions issued by the Central Government. Petitioner joined the services of erstwhile Punjab Public Works Department, Electricity Branch. Subsequently, on formation of Punjab State Electricity Board, he became its employee and on formation of State of Haryana, services of the petitioner were allocated to Haryana State Electricity Board. It is not disputed that later Haryana State Electricity Board was bifurcated into HVPN and HPGC. In the month of May, 1973, the petitioner was sent on deputation to Rural Electrification Corporation, a Government of India undertaking. Later Rural Electrification Corporation came out with a proposal to permanently absorb the petitioner and the Haryana State Electricity Board agreed to the proposal. Vide order dated 5.1.1978, Annexure P1, the terms of absorption of the petitioner in Rural Electrification Corporation were specified. Regarding pension, it is stated therein as under:- “(vi) PENSION 1. Board will not have liability for family pension. 2. Shri Wadhawan will exercise an option within six months of his absorption for either of the alternatives indicated below:- CWP No.16697 of 1998, CWP No.16542 of 2001, [4] CWP No.18934 of 2001 & CWP No.9656 of 2004 (a) Receiving the monthly pension and DCR Gratuity already worked out under the usual Government arrangements or (b) Receiving the gratuity and a lump sum amount in lieu of pension worked out with reference to commutation tables obtaining on the date from which pension will be admissible and payable under option orders. 3. Any further liberalization of pension rules decided upon by the Board after the permanent absorption of Shri Wadhawan in the Rural Electrification Corporation Limited will not be extended to him. 4. In case Shri Wadhawan has less than 10 yrs and is not entitled to pension the question of proportionate pension will not arise, he will not be eligible to proportionate service gratuity in lieu of pension and DCR gratuity based on length of service.” Since this Court is only concerned regarding commutation of pension, therefore, relevant portion of Annexure P1 has been reproduced above. At the time of absorption, the petitioner was having service less than 25 years. Therefore, by giving him relaxation, the benefit of pensionary benefits for the period 1.10.1977 to 24.9.1978 was extended. Thus, the period falling short was made good. On 25.8.1980, Haryana State Electricity Board, vide Annexure P3, sanctioned the payment of Rs.45,606/- being commuted value of Rs.275/- of full pension granted to the petitioner, who retired as Assistant Engineer. This communication stated that commutation of pension has become absolute w.e.f. 21.3.1980. On 11.4.1996, the petitioner made a representation (Annexure P4) to the Haryana State Electricity Board wherein he stated that in 1973, he was sent on deputation to Rural Electrification Corporation. He continued to receive CWP No.16697 of 1998, CWP No.16542 of 2001, [5] CWP No.18934 of 2001 & CWP No.9656 of 2004 monthly pension from Haryana State Electricity Board from 1.10.1977 to 20.3.1980 and from 21.3.1980 he was allowed 100% commutation of pension. The petitioner in his representation urged that in view of the judgment of Hon'ble Apex Court in “Common Cause” A Registered Society and others v. Union of India and others, 1987(1) SCC 142, he is entitled to restoration of one-third of the commuted pension. Since the respondents failed to respond, another representation, Annexure P5, was submitted to the Chairman, Haryana State Electricity Board. This representation was accompanied by a copy of circular dated 30.9.1996 of Ministry of Personnel, Public Grievances and Pensions (Department of Pension & Pensioners Welfare). On 8.7.1997, the petitioner made another representation to the Chief Secretary to Government of Haryana. As stated earlier, request of the petitioner was declined vide Annexure P9. Petitioner has relied upon a letter issued on 7.10.1968, Annexure P11, which says that in case an officer has opted for commutation of pension, such commutation shall be permissible at the time of superannuation. In support of the pleadings made in the present writ petition, counsel for the petitioner has relied upon an award dated 3.5.2000 given by the Lok Adalat in Civil Writ Petition No.923 of 1999, titled as, `Sant Lal Arora v. State of Haryana etc.', Civil Writ Petition No.924 of 1999, titled as, `Som Dutt Bansal v. State of Haryana etc.' and Civil Writ Petition No.15057 of 1999, titled as, `Dr.Prithvi Raj Sharma v. State of Haryana etc.', wherein relying upon a judgment of Hon'ble Apex Court in Welfare Association of Absorbed Central Government Employees in Public Enterprises and others v. Union of India and others v. Union of India and another, (1996)2 SCC 187, the commuted pension was ordered to be restored. CWP No.16697 of 1998, CWP No.16542 of 2001, [6] CWP No.18934 of 2001 & CWP No.9656 of 2004 Mr.Mohnish Sharma, learned counsel appearing for respondents No.1 and 2 has submitted that State of Haryana has not adopted the instructions issued by the Central Government in pursuance of Hon'ble Supreme Court judgments, therefore, till a policy decision is taken by the State of Haryana, respondents No.1 and 2, will not be able to accept the request made by the petitioners. To appreciate the prayer made in the writ petitions, it will be necessary to consider evolution of the `Concept of Commutation'. An employee at the time of retirement is entitled to pension. To fulfill the need of an employee who had retired, for discharge of the personal commitments which may be building of residence or marriage of the children, the Government permitted the said employee to commute certain portion of the pension. A question arose that for the amount paid in commutation, whether the employee will lose that part of the pension for whole life or for a limited period. To agitate this, a writ in “Common Cause”'s case (supra) under Article 32 of the Constitution was preferred before the Hon'ble Supreme Court. The Hon'ble Apex Court in the above-said case observed as under:- “9. In dealing with a matter of this nature, it is not appropriate to be guided by the example of Life Insurance; equally unjust it would be to adopt the interest basis. On the other hand, the conclusion should be evolved by relating it to the `years of purchase' basis. An addition of two years to the period necessary for the recovery on the basis of years of purchase justifies the adoption of the 15 years rule. That is more or less the basis which appears to be equitable. It may be that this would give rise to an additional burden on the exchequer but it would not be heavy and after all it would bring some relief to those who have served the cause of the Nation at great sacrifice. We are, therefore, of the view that no separate CWP No.16697 of 1998, CWP No.16542 of 2001, [7] CWP No.18934 of 2001 & CWP No.9656 of 2004 period need be fixed for the Armed Forces personnel and they should also be entitled to restoration of the commuted portion of the pension on the expiry of 15 years as is conceded in the case of civil pensioners. And for them too the effective date should be from 1.4.1985. 10. We direct the respondent-Government to give effect to this order within a period of three months from now. We place on record our appreciation of the consideration shown by the Union of India to ameliorate the hardship of the pensioners. There will be no order as to the costs.” To confirm to the observations made by the Hon'ble Apex Court, Government of India, issued necessary instructions and those instructions contained a provision that after 15 years of the disbursal of the commuted portion of the pension, the same shall be restored. These instructions were also issued by the State of Haryana. The instructions issued by the Central Government apply to its employees and to the Armed Forces but those employees of the Government of India, who were absorbed in public sector undertakings, were denied this relief primarily on the ground that in public sector undertakings, there was no provision of pension and one was given lump sum amount called as `Contributory Provident Fund'. The employees of the public sector undertakings approached the Hon'ble Apex Court by filing a writ petition in Welfare Association of Absorbed Central Government Employees in Public Enterprises's case (supra). In the judgment rendered by the Hon'ble Apex Court, three categories of employees were noticed. It will be apposite here to reproduce following portion of the judgment:- “..... This facility therefore creates three categories of these persons (1) the persons who have not commuted their pension and therefore draw full monthly pension from the Government; CWP No.16697 of 1998, CWP No.16542 of 2001, [8] CWP No.18934 of 2001 & CWP No.9656 of 2004 (2) the persons who have commuted one-third of the pension and therefore will draw a sliced monthly pension, reduced to the extent of commuted amount, (3) the persons who have commuted the full pension and who will not be given any monthly pension by deeming monthly pension to have been reduced to nil. The persons falling in the first category continue to derive all the benefits of being a government pensioner and get all the interim relief, liberalisation and/or whatever reliefs are given by the Government to the petitioners. But the persons in the second category are denied these benefits to the extent of “one-third commutation”. The third category are the worst hit and are totally denied of all these benefits.” After considering the categories of the employees, the Hon'ble Apex Court observed as under:- “9. From the above extract, it will be seen that a clear-cut distinction is made in Rule 37-A itself between one-third portion of pension to be commuted without any condition attached and two-third portion of pension to be received as terminal benefits with condition attached with it. It follows that so far as commutation of one-third of the pension is concerned, the petitioners herein as well as petitioners in “Common Cause” case stand on similar footing with no difference. So far as the balance of two-third pension is concerned, the petitioners herein have received the commuted value (terminal benefits) on condition of their surrendering of their right of drawing two- thirds of their pension. This was not the case with the petitioners in “Common Cause” case. That being the position the denial of benefit given to “Common Cause” petitioners to the present petitioners violates Articles 14 and 16 of the Constitution. The reasoning for restoring one-third commuted pension in the case of “Common Cause” petitioners equally applies to the restoration of one-third commuted pension in the case of these petitioners as well.” CWP No.16697 of 1998, CWP No.16542 of 2001, [9] CWP No.18934 of 2001 & CWP No.9656 of 2004 xx xx xx xx xx xx xx xx xx xx 13. If after the expiry of 15 years, the pensioners who have opted for one-third commutation, become entitled to restoration of pension on the ground that the lump sum amount paid had got adjusted before the said period as held in “Common Cause” case, there is no good reason for not applying the same to the petitioners who have commuted their one-third portion of the pension under Rule 37-A of the CCS (Pension) Rules, 1972 without any commitment for this portion of commutation. Presumably the respondents realising the fallacy have withdrawn the scheme of permitting commutation of full pension by OM No.4/42/91-P&PW (D) dated 31-3-1995. Para 3 of the Office Memorandum reads as follows: “3. The proposal to review the existing terms and conditions of absorption had been under consideration of the Government for quite some time past. The President is now pleased to ...(sic) that the existing terms and conditions of absorption shall stand partially modified to the extent indicated below: (a) The existing facility of receiving capitalisation value equivalent to 100% commutation of pension on absorption shall stand withdrawn; (b) The existing facility to draw pro rata monthly pension from the date of absorption (with option to commute 1/3rd pension wherever admissible shall continue to exist).” Petitioners claim that since similarly situated employees of Government of India, who were permanently absorbed in public sector undertakings are entitled to benefit of Central Government instructions regarding restoration of commuted pension, therefore, the petitioners, employees of State Government, who were also absorbed in public sector CWP No.16697 of 1998, CWP No.16542 of 2001, [10] CWP No.18934 of 2001 & CWP No.9656 of 2004 undertakings are also entitled to restoration of one-third value of the pension commuted. This Court is of the view that once in the light of observations made by the Hon'ble Apex Court in “Common Cause”'s case (supra) and Welfare Association of Absorbed Central Government Employees in Public Enterprises's case (supra), the Central Government had issued necessary instructions, State of Haryana should also consider the case of the petitioners in the light of aforesaid two judgments. Therefore, these four writ petitions are disposed of by giving a direction to the respondents to take a policy decision on the relief sought by the petitioners in the light of aforesaid two judgments of Hon'ble Apex Court. The Government shall consider the case of the petitioners and take the policy decision within six months from the date of receipt of a certified copy of this order. ( KANWALJIT SINGH AHLUWALIA ) August 12, 2010. JUDGE RC