CIVIL WRIT PETITION NO.17944 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 14, 2009 Kali Charan .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Ravi Verma, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner initially was appointed in the Education Department on 18.11.1961. On formation of State of Haryana, his services were allocated to the State Education Department w.e.f 1.11.1966. In the year 1985, disciplinary proceedings were initiated against the petitioner for having remained absent from duties. The petitioner has remained vague in making mention for the period he remained absent. However, he has disclosed in the petition that memo dated 26.11.1985 was served upon him and after holding the CIVIL WRIT PETITION NO.17944 OF 2007 :{ 2 }: regular enquiry, charge of absence was established against him. Accordingly, the services of the petitioner were terminated w.e.f. 25.8.1999. The petitioner filed an appeal against this order on 19.11.1999. The Appellate Authority issued direction that the services of the petitioner be terminated w.e.f. 4.5.1985 instead of 5.10.1999. Feeling aggrieved against this order, the petitioner filed Civil Writ Petition No.385 of 2003 primarily with the grievance that copy of the enquiry report had not been supplied to him and as such, whole proceedings were vitiated. This writ petition was allowed on 3.5.2004. While quashing the termination order, directions were issued to the respondents to pass a fresh order after supplying him copy of the enquiry report. Thereafter, respondent No.2 re- considered the matter and decided to compulsorily retired the petitioner from service w.e.f 4.5.1985 vide order dated 2.1.2006. The petitioner, thus, claims that he became entitled to the grant of retiral benefits like pension, gratuity, leave encashment etc. The petitioner submitted the necessary documents on 17.8.2006 with a request to release the retiral benefits on the basis of his qualifying service for the period from 18.11.1961 to 4.5.1985. The case of the petitioner was returned as the service book was in custody of respondent No.4. The pension case of the petitioner was re- submitted but was again returned with the remarks to send the same after getting the service book verified from the concerned Section Officer. The petitioner accordingly prays that his pension has not been released to him due to non availability of service book. The petitioner had first served a legal notice and thereafter filed the CIVIL WRIT PETITION NO.17944 OF 2007 :{ 3 }: present writ petition seeking direction for release of pension and other retiral benefits due to him. In the reply filed, the respondents have disclosed the factual position by way of preliminary submissions. It is stated that the petitioner was appointed on 18.11.1961 and he worked in the different Institutions upto 1.1.1978. While working in the Government Senior Secondary School, Gudiani (Rewari), the petitioner absented from duty w.e.f. 2.1.1978. The petitioner was accordingly charge sheeted under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1952 (for short, “the Rules”) vide order dated 12.11.1980 for his willful absence from duty from 1.1.1978 to 8.5.1980 and from 10.5.1980 onwards. The petitioner was warned to be careful in future vide order dated 30.6.1982, but still he failed to resume duties. He was again served a memo of charge dated 16.1.1985. For the said charge sheet also, the petitioner was warned to be careful on 10.9.1985. The petitioner, however, continued to remain absent from duty, for which he was again charge sheeted on 26.11.1985. Instead of submitting reply to this charge sheet, the petitioner submitted his resignation from service. At that stage, the Department after proper advice, did not consider it appropriate to accept the resignation of the petitioner, as he was continuously and willfully absent from duty w.e.f. 22.12.1977 to 1.1.1986. The proceedings had also been initiated against the petitioner under Rule 7 as already stated. The enquiry was held and enquiry report was submitted. The charges of willful absence from duty against the petitioner were duly proved and his services were accordingly terminated vide order dated 25.8.1999. CIVIL WRIT PETITION NO.17944 OF 2007 :{ 4 }: It has neither been clarified by the petitioner nor by the respondents that how the order of termination was passed in the year 1999 for the absence, which was from 1977 to 1986. It appears that the petitioner had continued to remain absent even after 1986 and the proceedings apparently were brought to finality in the year 1999. It is because of this reason that his services were ordered to be terminated on 25.8.1999. However, it is clear that the petitioner had filed an appeal against this order and the Appellate Authority directed that the services of the petitioner be terminated w.e.f. 4.5.1985 i.e. the date he has been absenting himself from duty instead of 5.10.1999. The petitioner, thus, apparently had continued to remain absent from 22.12.1977. The stand of the respondents in regard to claim of pensionary benefits is that the service book of the petitioner has been reconstructed. It is stated that the record of service of the petitioner for the period from 18.11.1961 to 31.3.1962 and from 1.7.1965 to 30.11.1970 is not found and hence, such service has not been verified. Still this service has been treated to be verified service. His qualifying service, thus, would work out to be just about 16 years. It is, thus, stated that he has not completed 25 years of qualifying service, when he was compulsorily retired nor has he attained the age of 55 years and hence, he is not entitled to pensionary benefits. The stand taken by the respondents can not be faulted. Such indulgence to a person like the petitioner as shown was really uncalled for. It is nothing sort of largesse shown to the petitioner. A person who has remained absent from 1977 onwards CIVIL WRIT PETITION NO.17944 OF 2007 :{ 5 }: obviously was initially treated with kids glove and left with warnings. He still continued to remain absent for a period which nearly is of three decades. Finally, he was shown the door but still after a period of 14 years. The Appellate Authority applied some correction to this wholly untenable position by directing termination of the petitioner w.e.f. 4.5.1985. This could not be termed as a complete correctional measure required to be taken in this case. The petitioner does not deserve and can not be allowed to take any more advantage despite being continuously absent. The consequence of earlier unwarranted position is that he is now before the Court to ask for pension and pensionary benefits. Strangely, he is claiming to his credit nearly 23 years of service. A person who was required to be properly dealt with for such a prolonged absence, a grave misconduct, has been allowed to escape from the rigors of law. This Court allowed his earlier writ petition on purely technical ground and directed further action but he has been shown much too kindness by the authority. The respondents were directed to pass a fresh order when the petitioner appears to have got a lease of new life and the order of premature retirement followed. He has now expended that lease to file the present petition to seek pension and pensionary benefits by claiming to be in service upto 4.5.1985 whereas in fact he had continued to remain absent from 22.12.1977. Can a person, like the petitioner, who has hardly worked in the Department be allowed to claim pension, though he has not a pensionable service? The submission by counsel for the petitioner that Rule 3.26 (d) of C.S.R. Volume I, Part I, can not be applied to the petitioner as he has been compulsorily retired by way of CIVIL WRIT PETITION NO.17944 OF 2007 :{ 6 }: punishment and not under the said Rule to be illegal is not worthy of acceptance. If the petitioner has been compulsorily retired by way of punishment, then he would have to complete a pensionable service as required under the Rules before he could be granted pension. Even if Rule 3.26 (d) is not applicable, still the petitioner has to show that he has a qualifying service for grant of pension, which he does not possess. Similarly, the reliance placed by counsel for the petitioner on the case of Balkar Singh Vs. Union of India and others, 1991 (1) SCT 523 would be of no help to him. That was a case of compulsorily retirement of the petitioner therein, who had not completed qualifying service for pension. Observing that the order whereby employee is rendered not eligible for pension would amount to termination of his service, the said order of compulsorily retirement was quashed. The facts in the present case are entirely different. Here the petitioner has been ordered to be compulsorily retired as a punishment, which has been awarded to him by following due process of law. The petitioner can not make a grievance that the order punishing him with compulsorily retirement could not have been made. Rather, the order of termination has been changed to compulsorily retirement after due consideration by holding a proceedings against the petitioner, for which liberty was given by this Court. The petitioner, in my view, did not deserve the order made by the authorities of changing his order of termination for absence running into years to that of compulsorily retirement. Can he still pray for something more? He certainly can not. The petitioner has also referred to the case of Ganga Bishan Vs. State of Haryana, 1994 (3) PLR 691. This was a case CIVIL WRIT PETITION NO.17944 OF 2007 :{ 7 }: where the petitioner therein was prematurely retired on completing 18 years, 5 months and 15 days services. He was held entitled to pension in view of Rule 6.16 (2) of Punjab Civil Services Rules, Volume II. It was observed by this Court that once a premature retirement is allowed before completing 20 years service without any condition, then a person can not be denied pension for want of qualifying service. Premature retirement order was not passed by way of punishment. This was a case where the request of the petitioner was accepted for premature retirement unconditionally. In this background, the provisions of Rule 6.16(1) were invoked to say that this provides the scale of service gratuity admissible to a person who retires before completing qualifying service of 10 years. The rule apparently makes a provision for proportionate pension once the person has rendered qualifying service of 10 years or more but less than 33 years. The ratio of this case also has no applicability to the facts of the present case. Once the petitioner has been directed to be compulsorily retired by way of punishment, he certainly can not claim pension as a matter of right and pension in such a case would be admissible only in case the petitioner had completed pensionable service, which was 25 years. There is, thus, no merit in the writ petition. The same is accordingly dismissed. September 14, 2009 ( RANJIT SINGH ) khurmi JUDGE