Allowed

Rattan Lal Aggarwal v. State of Haryana & Ors.

Punjab & Haryana HC3 Dec 2014CWP/1087/1994

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana held that an employee retrenched from a Government department and subsequently appointed in a Board under specific policy instructions was entitled to pay protection and pension credit for past service. The Court directed the Board to consider the claim and grant arrears.

What did the court decide?

Respondent Board directed to grant pay protection, count past service for pension and retiral benefits, and pay arrears with interest.

Rattan Lal Aggarwal Vs State of… — Pension and Retirement Benefits | Punjab & Haryana HC (2014)

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Civil Writ Petition No. 1087 of 1994 1

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Writ Petition No. 1087 of 1994 Date of Decision: 3.12.2014

Rattan Lal Aggarwal

....Petitioner

Versus

State of Haryana and others

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.....Respondents.

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CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present : Mr. Raman B. Garg, Advocate for the petitioner.

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Mr. S.S.Goripuria, DAG, Haryana.

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Mr. Sunil K. Rana, Advocate for Mr. Amit Jaiswal, Advocate for respondent No.3.

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1.Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not?

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3. Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK J. (Oral)

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Petitioner was retrenched from Haryana Tanneries Limited, Jind (for short 'Department'). However, before his retrenchment, petitioner had already rendered about 15 years of service. Thereafter, as per policy instructions dated 14.9.1990 (Annexure P-3) issued by the respondent-State, petitioner was appointed on the post of

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AMIT KUMAR 2014.12.10 10:20 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 1087 of 1994 2

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Assistant Secretary in the respondent-Board. By way of present writ petition, petitioner seeks directions against the respondent-Board to re-fix his pay after protecting his basic pay, drawn by him at the time of retrenchment from the Department and also for the purposes of pension and others retiral benefits.

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Notice of motion was issued and pursuant thereto, respondents filed their respective written statements contesting the claim of the petitioner.

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Learned counsel for the petitioner submits that in view of Clause VII of the policy instructions Annexure P-3, petitioner was entitled for the benefit of pay protection at the time of his appointment in the respondent Board vide order dated 12.11.1991 (Annexure P-1). In this regard, he places reliance on numerous orders including Annexures P-2, P-6 and P-7 issued by the respondent Board itself. He also places reliance on Annexures P-9 and P-10 issued by other departments protecting the pay of other employees, who were declared surplus with their parent department and thereafter, they were appointed fresh in view of the abovesaid policy instructions Annexure P-3 issued by the respondent State. In support of his contentions, learned counsel for the petitioner relies on a judgment of the Hon'ble Supreme Court in Gurmail Singh and others Vs. State of Punjab and others , 1991 (3) SCT 608 and three orders of this Court in Rajinder Parshad Vs. Haryana Tourism Corporation (CWP No. 15205 of 1992 decided on 13.3.2014) Hari Pal Malik Vs. State of Haryana and another (CWP No. 19205 of 2005 decided on 24.9.2010) and Jai Parkash Gemini AMIT KUMAR

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AMIT KUMAR 2014.12.10 10:20 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 1087 of 1994 3

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Vs. State of Haryana and another (CWP No. 12749 of 2005 decided on 12749 of 2005). He prays for allowing the writ petition.

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Per contra, learned counsel for the State submits that although the policy instructions Annexure P-3 issued by the respondent State was a matter of record, yet it was within the exclusive domain of the respondent Board-employer of the petitioner to grant him benefit of pay protection etc. He prays for passing of an appropriate order.

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Learned counsel for respondent No.3, while referring to the averments taken in para 4 of the written statement, submits that respondent-Board was not bound by the judgment passed by this Court in CWP No. 9496 of 1988, because the said case was decided according to its own peculiar facts and circumstances. He prays for dismissal of the writ petition.

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Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, instant writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.

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It is a matter of record and not in dispute that apprehending retrenchment on closure of the Department, employees union approached this Court by way of CWP No. 9496 of 1988 and the same was disposed of by a Division Bench judgment of this Court, on 1.12.1988 by passing the following order:-

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“Both the parties agree that the petition AMIT KUMAR 2014.12.10 10:20 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 1087 of 1994

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may be disposed of at the motion stage itself.

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We have heard the learned counsel for the petitioner as also the learned Advocate General Haryana, appearing for the State. Having regard to the facts and circumstances of the case, we think that the most equitable course is the one that was followed by the Supreme Court in decision reported in G.Govinda Rajulu Vs. the Andhra Pradesh State Construction Corporation Ltd. and another, AIR 1987 Supreme Court 1801. Following that precedent, we direct the respondents to take the retrenched employees either as Class-IV employees or other managerial staff in the Government Corporations or Boards according to the qualifications of each of the employees and their fitness. Such absorption of the retrenched employees shall be done within a period of six months from this date. If any relaxation of the age limit is necessary, that shall also have to be done before appointments. The retrenched employees also will be entitled to take into account the service rendered in the Haryana Tanneries Ltd. in case they are appointed in pensionable jobs for the purpose of pension and other retirement benefits. However, it is made clear that any appointment made under this order shall be treated as new

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Civil Writ Petition No. 1087 of 1994

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appointment for the purpose of seniority among the employees. This relief given is also without prejudice to the retrenchment and any other compensation, they may be entitled to under the provisions of the Industrial Dispute Act, 1947. There will be an order accordingly.”

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The contentions raised by learned counsel for the respondent Board that the abovesaid order passed by this Court was not binding on the respondent Board, is on the face of it misconceived and the same cannot be accepted. Further, the policy instructions Annexure P-3 issued by the respondent State is also a matter of record. The subject matter of the policy instructions was absorption of surplus staff of the Haryana Tanneries Limited, Jind, Haryana Agro Industries Ltd., Haryana Television Ltd. Faridabad, MITC and other Boards/Corporation in the Revenue Department. Clause VII of the policy instructions Annexure P-3, which is relevant in the present case, reads as under:-

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“However, their pay would be protected but the past liabilities, if any, will be met by the present office.” Following the abovesaid instructions, the respondent-Board issued two communications Annexures P-6 and P-7. Relevant part of Annexure P-6, reads as under:-

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“With reference to your representation

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dated Nil, it has been decided that your pay will be protected as per Govt. instructions. However, you will not be given benefit of past service towards AMIT KUMAR 2014.12.10 10:20 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 1087 of 1994 6

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seniority. It is further clarified that the past liability for the service rendered in your parent Deptt., if any, will be met by out parent office/Deptt.”

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Similarly, Annexure P-7 was issued to the following effect:-

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“It is intimated that the condition of pay protection has been accepted. You should join by the 20^th April, 1992 positively otherwise your appointment officer shall stand cancelled.”

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Other departments of the respondent State had also issued the similar orders from time to time. Annexures P-9 and P-10 were issued granting the benefit of pay protection to the similarly situated employees. Somewhat similar controversy fell for consideration before the Hon'ble Supreme Court in Gurmail Singh's case (supra). Relevant observations made in para 17 and 18 of the judgment, read as under:-

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“........ Acting as a model employer, which the State ought to be, and having regard to the long length of service of most of the appellants, the state, in our opinion, should have agreed to bear the burden of giving the appellants credit for their past service with the Government. That would not have affected the Corporation or its employees in any way--except to a limited extent indicated below--and, at the same time, it would have done justice to the appellants. We think, therefore, that

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this is something which the State ought to be AMIT KUMAR 2014.12.10 10:20 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 1087 of 1994

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directed to do.

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We would, however, like to clarify that the sole purpose and object of our above direction is that the appellants should be entitled to count their past service with the Government for the purpose of computation of their salary, length of service and retirement benefits with the Corporation.........

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Finally, the Hon'ble Supreme Court issued positive directions declaring the appellants therein to be entitled for the benefit of length of service for the purpose of computation of their salary, pension and other retirement benefits in para 20 of the judgment and the same reads as under:-

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“ For the reasons discussed above, we

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declare that the appellants will be entitled to add their service in the Government to their length of service in the Corporation for purposes of computation of their salary, length of service and retirement benefits. The Corporation is also directed to ensure, as far as possible, that none of the appellants are retrenched as surplus on account of any closure of tubewells or other like reason until they retire or leave the service of the Corporation voluntarily for any reason.

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Similar view was taken by this Court in the three orders referred to hereinabove in the cases of Rajinder Parshad (supra), Hari Pal Malik (supra) and Jai Prakash Gemini (supra).

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AMIT KUMAR 2014.12.10 10:20 I attest to the accuracy and authenticity of this document

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Civil Writ Petition No. 1087 of 1994

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Learned counsel for the State as well as learned counsel for the respondent-Board could not point out any contrary judicial precedent, so as to convince this Court to take a different view than the one taken hereinabove. Having said that, this Court feels no hesitation to conclude that petitioner was entitled to be treated similarly at the hands of the respondent Board, while fixing his basic pay.

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It is neither pleaded nor argued case on behalf of the respondent-Board that policy instructions Annexure P-3, issued by the respondent State were not binding on the respondent-Board. A bare reading of policy instructions Annexure P-3 particularly clause VII thereof, would show that right of the petitioner flows in his favour from the said policy instruction itself. In this view of the matter, it can be safely concluded that petitioner was eligible, competent and entitled for the benefit of pay protection and was also entitled to get his past service rendered in the Department counted for the purpose of pension and other retiral benefits. However, it is made clear that it was not the case of the petitioner that he was entitled for counting his service rendered in the Department for the purpose of seniority.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the

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case noted above, coupled with the reasons aforementioned, this Court is of the considered view that action of the respondent-Board has since been found to be patently illegal, the same cannot be sustained.

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Consequently, the respondent Board is directed to consider

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Civil Writ Petition No. 1087 of 1994 9

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the claim of the petitioner for the benefit of pay protection taking into consideration the service of about 15 years rendered by the petitioner in the Department. The said service rendered by the petitioner in the Department shall also be counted for the purpose of pension and other retiral benefits.

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Let the respondent Board do the needful within a period of three months from the date of receipt of certified copy of this order. Since the abovesaid benefit of the petitioner has been illegally withheld by the respondent-Board, petitioner shall also be entitled for arrears alongwith interest @ 9% from the date when it became due till the date of actual payment. If the needful is not done within the stipulated period, petitioner shall be entitled for interest @ 12% instead of 9%.

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Resultantly, with the abovesaid observations made and directions issued, instant writ petition stands allowed, however, with no order as to costs.

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(RAMESHWAR SINGH MALIK) JUDGE

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3.12.2014 AK Sharma

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Rattan Lal Aggarwal v. State of Haryana & Ors.

Case brief

What is this about?

What did the court decide?

Rattan Lal Aggarwal v. State of Haryana & Ors.

Case brief

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What did the court decide?

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