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2002 DIGILAW 258 (HP)

BHAKHRA BEAS MANAGEMENT BOARD v. MAHANT RAM

2002-09-12

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—This appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 7.10.1999 passed by the learned District Judge, Mandi thereby affirming the judgment and decree dated 15.5.1995 passed by the learned Sub Judge, I Class (I), Mandi decreeing the suit of the respondent/plaintiff (hereafter referred to as the plaintiff). 2. Brief facts leading to the presentation of this appeal are that the plaintiff instituted a suit for declaration that he is entitled to pension and other service benefits payable to a regular employee of the appellant/defendant No. 1 and for perpetual prohibitory injunction restraining the respondents/ defendants (hereafter referred to as D-l to D-4) from with holding the pension and other benefits of the plaintiff. The case of the plaintiff as made out in the plaint is that he was appointed as a fireman in B.S.L. Project with effect from 19.2.1969 and worked as such till 30.9.1974 whereafter he was promoted as Chargeman with effect from 1.10.1974 and worked as such till 29.6.1977 when he was retrenched. He was re-employed as Lineman on 15.12.1984 and his services were regularised with effect from 1.1.1989. The plaintiff opted for pension, CPF Scheme introduced by D-l with effect from 1.1.1989. Because of the conversion in regular industrial service, the conditions of service of the plaintiff also stood changed and he was governed by the Punjab C.S.R. whereunder the plaintiff stood superannuated on completion of 58 years of age instead of 60 years as was settled in his appointment letter dated 14.12.1994. When the plaintiff was called upon to opt for his absorption in the regular service with pensionary benefits in the year 1989, he was not informed that the past service rendered by him in the B.S.L. Project would not be counted. Had he been so informed, he would not have opted for being out of the workcharge cadre. On the strength of his option, he is now being denied pension and other pecuniary benefits to which he would have otherwise been entitled as a workcharge workman. It is further averred that the past service of the plaintiff since 19.2.1969 is required to be counted towards his service and if such service is taken into account, he would have put in more than 17 years of service at the time of superannuation. It is further averred that the past service of the plaintiff since 19.2.1969 is required to be counted towards his service and if such service is taken into account, he would have put in more than 17 years of service at the time of superannuation. The plaintiff represented to the defendants to do the needful which was declined. Hence the suit. 3. The defendants contested the suit. In their written statement they averred that the plaintiff has concealed the material facts of the case inasmuch as the true state of affairs is that service rendered by the plaintiff in B.S.L. Project with effect from 19.2.1969 to 29.6.1977 was in workcharge capacity and thereafter he was retrenched and received all the terminal benefits as admissible. However, the pension scheme was not applicable to such employees. At a later stage, the plaintiff was appointed afresh as employee of D-l in the year 1984 as a fireman on 15.12.1984. He willingly opted for absorption in the regular cadre of BBMB. Thus, having come in the regular cadre of D-l, the services of the plaintiff were governed by the provisions of the Punjab Civil Service Rules, therefore, after attaining the age of superannuation, i.e. 58 years, the plaintiff was retired from service on 30.11.1993. Thus, having served D-l only for a period of less than ten years, the plaintiff, besides other terminal benefits of service, is entitled to service gratuity instead of pension required by him. Therefore, the plaintiff is not entitled for grant of pensionary benefits. Thus, the claim of the plaintiff has been denied. 4. The plaintiff filed replication wherein the grounds of defence as taken in the written statement were repudiated and the claim as made out in the plaint was re-affirmed. 5. On the pleadings of the parties, the learned trial Judge framed the following issues : "1. Whether the plaintiff is entitled for pension in lieu of the services, rendered by him, as alleged? OPP 2. Whether the suit is not maintainable as alleged? OPD 3. Relief." 6. On the material brought on record by the parties by way of evidence, the learned trial Judge decided issue No. 1 in favour of the plaintiff and issue No. 2 was decided against the defendants and as a consequence, the suit was decreed. OPP 2. Whether the suit is not maintainable as alleged? OPD 3. Relief." 6. On the material brought on record by the parties by way of evidence, the learned trial Judge decided issue No. 1 in favour of the plaintiff and issue No. 2 was decided against the defendants and as a consequence, the suit was decreed. Being aggrieved, the defendants preferred an appeal which was dismissed by the learned District Judge, Mandi by the impugned judgment and decree. Hence the present appeal. 7. I have heard the learned Counsel for the parties and have also gone through the records. 8. This appeal was admitted on the following substantial questions of law— 1. Whether for calculating the period of the minimum qualifying service prescribed for grant of pension, the past service rendered by a retiree with an erstwhile different employer can be taken into consideration by the subsequent employer particularly when such past service has neither been protected nor continued for such a relief by the subsequent employer on a fresh employment or even under any statutory rules? 2. Whether the findings of the learned Courts below are vitiated being based on no evidence to hold that the plaintiff/respondent was employed by the appellant board pursuant to the "award made in Reference No. 2-C of 1971 of Industrial Tribunal Central, Chandigarh? 3. Whether the judgment and decree of the learned Courts below suffer from misconstruction and misinterpretation of the pleading, the evidence, oral as well as also documentary, particularly Ex. PB and Ex. PC, particularly, when the past service of the plaintiff rendered in BCB had neither been protected either by mutual agreement or statutory nor the plaintiff having been employed in appellant board pursuant to the award 2-C of statutory Industrial Tribunal Central, Chandigarh and finding to the contrary are based on no evidence thus vitiating the findings of the learned Courts below? 9. Since all these questions are inter connected, therefore, can be conveniently discussed together. The facts of the case which were not disputed at the time of arguments are that the plaintiff worked in BSL Project in different capacities from 19.2.1969 till 29.6.1977 when he was retrenched on payment of all terminal benefits as were available to him. The validity of retrenchment is not in dispute. The plaintiff was, however, given an offer of appointment as Fireman vide letter of offer (Ex. The validity of retrenchment is not in dispute. The plaintiff was, however, given an offer of appointment as Fireman vide letter of offer (Ex. RX) dated 14.12.1984 which he accepted and was accordingly appointed against the post off a work charged Fireman and worked as such till 1.1.1989 when his services were regularised on the basis of option given by him. The effect of such regularisation was that the service of the plaintiff was to be governed by the Punjab Civil Service Rules. As a consequence, the plaintiff retired from service on attaining the age of superannuation, i.e. 58 years, and was given all terminal benefits, except pension. The pension was refused to him on the ground that by the time of his retirement, he did not have the minimum qualifying service of ten years. The claim of the plaintiff now is that his option for regularisation of his service was obtained without making him to understand the effect of giving such option, therefore, the services rendered by him earlier under the BSL Project, ought to have been counted towards qualifying service for the purpose of pension and thereby, he is entitled for pension. 10. This claim of the plaintiff is denied by the defendants. 11. The learned trial Judge came to the conclusion that :— "....discrimination has been created by the defendants with the people who remained in service and immediately on retrenchment were re-employed or those whose services from BCB were taken over by the B.B.M.B. and the people who at first were retrenched and after some gap were again re-employed. The other discrimination caused is that the plaintiff being not well literate, not aware of the consequences of his option for getting the services absorbed in regular cadre has been deprived of two years of service. This option has been secured for the disadvantage of the plaintiff." 12. As already stated hereinabove, this is not the case of the plaintiff that his retrenchment as a fireman in the BSL Project was {discriminatory in any manner whatsoever and was, therefore, invalid. In the plaint, there is no allegation whatsoever about any type of discrimination having been resorted to by the defendants in dealing with the case of the plaintiff. It is not in dispute that the plaintiff and other similarly situated persons were taken in employment on temporary basis for the purpose of completing the Bias Project. In the plaint, there is no allegation whatsoever about any type of discrimination having been resorted to by the defendants in dealing with the case of the plaintiff. It is not in dispute that the plaintiff and other similarly situated persons were taken in employment on temporary basis for the purpose of completing the Bias Project. Evidently, on completion of such work, the employment, in the normal course, was to come to an end. On completion of the work, the plaintiff came to be retrenched, without any discrimination qua him in the matter of retrenchment and admittedly he got all the terminal benefits as were available to him as a retrenchee. Giving of the option by the plaintiff to regularise his services and thereby making the Punjab Civil Service Rules applicable to him, can also not be termed as an act of discrimination. There is no evidence at all that the option from the plaintiff was obtained by misrepresentation, coercion, fraud or any other unlawful means. The plaintiff (PW-1), in his statement, has stated nothing on the basis of which the option given by him may be treated involuntary and invalid. He has clearly and unequivocally admitted in his statement that he was served with a notice to give his option to regularise his service and he gave his option for being so regularised. His services were regularised in the year 1989 on the basis of his option and he continued to take the benefits of such regularisation . till December 1993 when he was retired from service after attaining the age of superannuation. Thus, regularising the services of the plaintiff as per his own option, is not an act of discrimination. The plaintiff being retrenched employee, could not claim parity with those employees of BCB who were inducted into BBMB with continuity of service and later converted into regular cader as there was no continuity of service in his case. The learned trial Judge, therefore, has evidently proceeded to decree the suit of the plaintiff on the grounds which were neither pleaded nor proved by leading any evidence. 13. The learned District Judge, by the impugned judgment, had not concurred with the reasonings and grounds of decreeing the claim of the plaintiff by the learned trial Judge. He proceeded to maintain the decree, evidently for different reasons. 13. The learned District Judge, by the impugned judgment, had not concurred with the reasonings and grounds of decreeing the claim of the plaintiff by the learned trial Judge. He proceeded to maintain the decree, evidently for different reasons. In decreeing the suit of the plaintiff, he relied on condition No. 3 of the terms and conditions applicable to the regular employees Ex. PC, which reads as under : "3. In respect of workcharged employee of BCB inducted into BBMB as per the Industrial Award, with continuity of service, who was not governed under the EPF Act, his past service rendered as workcharged employee in BCB together with such service in the BBMB, before his becoming a regular employee of the BBMB, will count for pensionary/Gratuity and other retiral benefits under the new Scheme approved by the Board." 14. Evidently, the aforesaid condition would be applicable in respect of those work charged employees of BCB who were inducted into BBMB as per the Industrial Award with continuity of service, and were not covered under the EPF Act. One who fulfilled these conditions, his past service rendered as work charged employee of BCB together with such service in the BBMB before his becoming a regular employee of the BBMB, were to be counted for the purpose of pension, Gratuity and other retiral benefits. 15. The Industrial Award referred to hereinabove, admittedly means the award in Reference No. 2-C of 1971 of the Industrial Tribunal, the material part whereof reads as under : "It is, accordingly, directed that at the time of completion of the Project or at any time within six months thereof for the maintenance staff for the Project or any of its works if it is required to be recruited or transferred from any department of the State Governments or of the Central Government the offer shall first be made to the workcharged employees in order of their seniority who have put in 10 years continuous service or more under the Board in that category or trade where the vacancy occurs subject to the medical fitness of such workmen." 16. To be covered under the above direction of the Industrial Tribunal, the plaintiff had to plead and prove (i) that the offer of re-employment was made to him on completion of the Project (BSL Project) or at any time within six months after such completion; (ii) that the recruitment to the post offered to the plaintiff was required to be made directly or by transfer from any of the Departments of the State or the Central Government; (iii) that such recruitment was required to be made for the maintenance of the staff for the Project or any of its works and (iv) that the plaintiff had put in 10 years continuous service or more under the Board prior to such service and ranked senior most to similarly situated persons. 17. It is, however, not the pleaded case of the plaintiff that his case falls within the ambit and scope of the aforesaid directions made in the award nor there is any evidence on record to prove that the re-employment of the plaintiff was as per the aforesaid directions and he fulfilled all the requisite qualifications for such re-employment and thereby he was entitled for the benefit of condition No. 3 supra. Admittedly, he had not put in 10 years service before his retrenchment but had worked for a period of less than 10 years and was earlier covered under the EPF Act. Therefore, he could not be given the benefit of the said condition and the direction in the award. 18. There is nothing on record on the basis of which it could be held that the service rendered by the plaintiff in BSL Project should have been counted towards his regular service, for the purpose of giving him the benefit of pension. Evidently, the learned District Judge has also misinterpreted and misapplied condition No. 3 of Ex. PC and the direction of the award, to the case of the plaintiff, more-so in the absence of pleading and cogent proof. 19. As a result, the impugned judgment and decree are set aside and the suit of the plaintiff is dismissed. However, in the facts and circumstances of the case, parties are left to bear their own costs. Appeal dismissed.