CWP No.18244 of 2008.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.18244 of 2008 Date of Decision: 29.07.2010 **** Telu Ram . . . Petitioner VS. Punjab State Electricity Board & Ors. . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. SK Sandhir, Advocate for the petitioner Mr. HS Grewal, Advocate for respondents No.1 & 2 Mr. Sachin Mittal, Advocate for respondents No.3 &4 ***** SURYA KANT J. (ORAL) (1). The petitioner joined the erstwhile Punjab State Electricity Board (PSEB) as a Fitter on work- charged basis w.e.f. 04.10.1963 and on that very day he was transferred to the Bhakra Beas Management Board (BBMB). The petitioner continued to serve the BBMB as a PSEB employee till he retired w.e.f. 28.02.2001 on attaining the age of superannuation. It may be mentioned here that at the time of his retirement the petitioner was holding the post of Plant Attendant with basic pay of Rs.6500/-. On his retirement, the CWP No.18244 of 2008.doc - 2 – petitioner was granted pensionary benefits on the basis of basic pay of Rs.5700/- on the premise that had he continued to serve in the PSEB, his basic pay would have been Rs.5700/- only and that the post of Plant Attendant occupied by the petitioner at the time of his retirement in the BBMB was on ad hoc basis. (2). The petitioner approached this Court by way of CWP No.9007 of 2002 seeking a direction for counting of his work-charged/ad hoc service towards the ‘qualifying service’ for the purposes of pensionary benefits and for fixation of his pension as per the basic pay of Rs.6500/-. The Division Bench vide order dated March 10, 2005 (Annexure P1) accepted the first claim of the petitioner but declined the second relief after observing that “as regards the last pay drawn, there is no rebuttal to Certificate Annexure R1/2 and, therefore, the contention that he would be entitled to have Rs.6500/- treated as last pay drawn cannot, in these circumstances, be accepted”. (3). The petitioner went in review against the above- reproduced order which was also dismissed on 15th September, 2006 (Annexure P2) after CWP No.18244 of 2008.doc - 3 – observing that “if there is any decision by Hon’ble Supreme Court entitling the petitioner to claim retirement benefits on the basis of the last pay drawn by him, the competent authority shall be bound by such order of Hon’ble the Supreme Court.” (4). Thereafter, the petitioner represented the authorities but finding no response that he has again approached this Court. (5). The above noticed facts have been broadly admitted by the respondents in their reply/affidavit who have further reiterated that the petitioner is entitled to be paid pension on the basic pay of Rs.5700/- only which he would have drawn as an Oiler and Cleaner in the PSEB as his appointment as Plant Attendant was never regularized by the PSEB. (6). Learned counsel for the parties have been heard at some length and the record perused. (7). Rule 6.19-C of the Punjab Civil Service Rules, Vol- II defines the term ‘emolument’ for the purpose of ‘Chapter of Pension’, to mean “pay” as defined in Rule 2.44 of the Punjab Civil Service Rules, Volume-I, Part-I, including dearness allowance as determined by the Government from time to time. CWP No.18244 of 2008.doc - 4 – Rule 6.19-C along with its Notes-1, 2 & 3 reads as follows:- “6.19-C. The term ‘emoluments’ when used for this purpose shall mean ‘pay’ as defined in Rule 2.44 of the Punjab Civil Services Rules, Volume I, Part I, including dearness pay as determined by the orders of the Government issued from time to time, which the employee was receiving immediately before his retirement, or the date of his death. Note I. – If a Government employee immediately before his retirement or death, while in service, has been absent from duty on leave with allowances, for which leave salary is payable or having been suspended had been reinstated without forfeiture of service his emoluments for the purpose of calculating service gratuity for death-cum-retirement gratuity shall be taken at what they would have been had he not been absent from duty or suspended. Note 2 – Pay drawn in tenure appointment(s) shall count provided the service in tenure appointment(s) does not quality for grant of special additional pension. Note 3 – There shall be no change in the existing principle of reckoning those emoluments for pension which are paid by the Government. In other words, the entire amount drawn as emoluments by a Government employee while on foreign service shall not count for pension and gratuity. In such a case, the pay which the Government employee would have drawn under the Government had he not been sent on foreign service, shall alone be taken into account.” CWP No.18244 of 2008.doc - 5 – (8). Similarly, Rule 6.24 of the Punjab Civil Services Rules Vol-II which defines ‘average emoluments’ and applies mutatis mutandis to the employees of the respondent-Board also, prescribes the formula for fixation of pension on the basis of ‘average emoluments’ in the following manner:- xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx “6.24 (1) The term “average emoluments”, means the average calculated upon the last ten months of qualifying service. (2) If during the last ten months of his service a Government has been absent from duty on leave with leave salary and also on extraordinary leave which counts for pension or having been suspended has been reinstated without forfeiture of service, his emoluments, for the purpose of ascertaining the average, should be taken at what they would have been had he not been absent from duty or suspended: provided always that, except as provided in Note below, his pension must not be increased on account of increase in pay not actually drawn. xxx xxx xxx xxx xxx (7) Except as provided in clauses (2) to(6) above, only emoluments actually received can be included in the CWP No.18244 of 2008.doc - 6 – calculation. For example, when a Government employee is allowed to count time retrospectively towards increase of pay, but does not receive intermediate increments are not reckoned in the calculations.” (Emphasis applied) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (9). Rule 6.19-C if read with Rule 6.24 ibid it is so apt that an employee’s pension is required to be determined on the basis of the ‘average emoluments’ drawn by him during the last 10 months of ‘qualifying service’. (10). The service rendered by the petitioner as Plant Attendant in PSEB admittedly is and has been included in his ‘qualifying service’ in the light of the first part of the Division Bench decision of this Court dated March 10, 2005 passed in CWP No.9007 of 2002 (Annexure P1) filed earlier by the petitioner. There can be, thus, no escape but to direct for determination of the petitioner’s pension on the basis of the average emoluments drawn by him during the last 10 months immediate before his retirement. Concededly, the average emoluments were drawn by the petitioner during the said period on the basic pay of Rs.6500/-. CWP No.18244 of 2008.doc - 7 – (11). For the reasons afore-stated, the writ petition is allowed; the respondents are directed to refix the petitioner’s pension on the basis of the ‘average emoluments’ drawn by him during 10 months immediately preceding the date of his retirement i.e. on the basis of the basic pay of Rs.6500/-. The respondent, however, shall be at liberty to verify the correct basic pay of the petitioner from the BBMB, if so required. (12). The needful shall be done within a period of four months from the date of receipt of a certified copy of this order. (13). The petitioner shall also be entitled to consequential benefits, however, without any interest thereupon. (14). Ordered accordingly. (15). Dasti . (SURYA KANT) JUDGE 29.07.2010 vishal shonkar