Punjab State Electricity Board & Anr vs Narata Singh & Anr

2. The admitted facts which emerge from the record of the case are as under: The respondent No.1 worked with Irrigation and Power Department of the State of Punjab on work charged basis from February 1, 1952 to September 18, 1953. From September 25, 1953, he worked as work charged employee with the Bhakra Dam Project and resigned therefrom on January 27, 1962. He thereafter joined the Beas Dam Project on February 1, 1962 and worked at the said project till April 15, 1978 as work charged employee. He was retrenched from the said project with effect from April 15, 1978 and was paid retrenchment compensation of Rs.11,803.20 and gratuity of Rs.8559/- by the competent authority of the project. Bhakra Dam Project and Beas Dam Project are under the Department of Irrigation and Power, State of Punjab and, thus, even as per the appellants, the services rendered by the respondent No.1 as work charged employee in the two projects was, in fact, service under the State of Punjab.

The appellant No. 1, i.e., Punjab State Electricity Board is a statutory body constituted under Section 5 of the Electricity (Supply) Act, 1948. The respondent No.1 was employed on work charged basis as a special foreman by the Board as a fresh appointee. He worked in the same capacity from August 6, 1982 to January 5, 1984. With effect from January 6, 1984, he was appointed on regular basis. He retired from the service of the Board with effect from July 31, 1990 on attaining the age of superannuation. The respondent No.1 thereafter moved a representation requesting the Board to grant him pension and other retiral benefits after taking into account the entire service rendered by him on work charged basis under the State Government. By an order dated January 25, 1991, the respondent No.1 was paid a sum of Rs.29,250/- being the amount payable to him as death-cum- retirement gratuity. The relevant regulation framed by the Board provides that an employee who has served for a minimum period of qualifying service of 10 years would be entitled to pension. The claim of the Board is that the respondent No.1 had served the Board for 7 years, 11 months 4 and 25 days including the work charged service in the Board and was, therefore, not qualified for grant of pension. The claim of the respondent No.1 was that service rendered by him in the State of Punjab as work charged employee should be counted for determining qualifying service for the purpose of pension. Therefore, he instituted C.W.P. No.10911 of 1991 before the High Court of Punjab and Haryana seeking inclusion of work charged service for the purpose of determining qualifying service. A Division Bench of the Punjab and Haryana High Court at Chandigarh, vide order dated January 28, 1992, allowed the writ petition of the respondent No.1 and directed the Board to include work charged service rendered by the respondent No.1 with the State of Punjab for the purpose of determining qualifying service for grant of pension to him. It may be mentioned that the Board had issued a Finance Circular No.24/92 dated May 29, 1992 deciding to include the period of work charged service of an employee with the Board for the purpose of grant of pensionary benefits as well as for counting the said period for determining qualifying service for grant of pension. 5

3.17(ii) of the Punjab Civil Services Rules which, inter alia, provided that period of service in work charged establishments shall not be counted as qualifying service. After noticing the ratio laid down by the Full Bench, the Division Bench concluded that Rule which excluded the counting of work charged service of an employee whose services were regularized subsequently was bad in law and, therefore, the conclusion of the Board that the case of the respondent No.1 was not covered by Circular dated November 25, 1985 because services rendered by him as work charged employee in the departments of the State Government was non-pensionable service so far as the Government of Punjab was concerned, was wrong. In view of the said conclusion, the Division Bench by the impugned judgment has allowed the claim of the 9 respondent No.1 to include work charged service rendered by him with the State of Punjab for grant of pension and directed the Board to count the said period for determining qualifying service for the purpose of pension, giving rise to the instant appeal.

12. It was contended that the additional documents produced by the respondent No.1 before the court in appeal could not have been taken into consideration and, therefore, the impugned judgment should be set aside. It is true that the documents which were sought to be relied upon at the appellate stage were not produced by the respondent No.1 before the learned Single Judge who had decided the writ petition filed by him. However, there is no manner of doubt that those documents were brought on record by filing applications which were allowed. The order allowing the applications was never challenged by the appellants before the higher forum. The appellants, by their conduct, had permitted the said order to attain finality. As those documents were neither considered by the learned Single Judge nor by the 2 Board, the Division Bench had directed the Board to reconsider the claim of the respondent for pension by inclusion of service rendered by him as work charged employee under the State Government. That direction was accepted and implemented by the appellants by considering the case of the respondent No.1 in the light of new documents. Thereafter, the claim of the respondent No.1 was rejected by a speaking order and the speaking order was produced before the Court. The Court had thereafter heard the learned counsel for the parties and, thus, the appellants were given sufficient opportunity to meet with the case of the respondent No.1 based on new documents. The existence of the documents relied upon by the respondent No.1 at the appellate stage was never disputed by the appellants. On the facts and in the circumstances of the case, this Court is of the firm opinion that neither the appellants were taken by surprise when the respondent No.1 produced new documents which were considered by the Court nor any prejudice was caused to them. Therefore, consideration of new documents by the Court does not have any vitiating effect on the ultimate 2 decision of the Court.

13. The learned counsel for the appellants pointed out the finding recorded by the Division Bench in the impugned judgment to the effect that "we are, therefore, clearly of the opinion that the work charged service of the appellant with the Board must be counted for determining qualifying service for the purpose of pension" and argued that the judgment of the High Court should not be construed to mean as giving direction to the appellant to include previous service rendered by the respondent No.1 as work charged employee of the State Government for pension purposes. So far as this argument is concerned, it is true that the Division Bench of the High Court has expressed the above opinion in the impugned judgment. However, the reference to Rule 3.17(ii) of the Punjab Civil Services Rules as well as the Full Bench decision of the Punjab and Haryana High Court in Kesar Chand vs. State of Punjab & Ors. [1988 (5) SLR 27] and speaking order dated November 16, 2005 passed by the Board rejecting the claim of respondent No.1 makes it abundantly clear that the High Court has directed the appellants to count the period of service rendered 2 by the respondent No.1 in work charged capacity with the State Government for determining qualifying service for the purpose of pension. Further, the respondent No.1 has been directed to deposit the amount of Employee's Contributory Fund which he had received from the appellants along with interest as per the directions of the Board before the pension is released to him. All these directions indicate that the High Court had come to the conclusion that the period of service rendered by the respondent No.1 in work charged capacity under the State Government should be taken into consideration for determining qualifying service for the purpose of pension. Non-mention of such direction in the impugned judgment is merely a slip and the appellants cannot derive any advantage from this.

14. The net result of the above discussion is that this Court does not find substance in any of the arguments advanced on behalf of the appellants. The appeal lacks merit and, therefore, deserves to be dismissed. Therefore, the appeal fails and is dismissed. There shall be no order as to costs. 2

15. The appellants are directed to implement the directions given by the High Court in the impugned judgment as early as possible and not later than three months from the date of receipt of the writ of this Court.

February 23, 2010.