Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 78 (HP)

HARI RAM THAKUR v. STATE OF HP

2002-03-27

NARINDER SINGH THAKUR

body2002
ORDER Honble Mr. Narinder Thakur, Member (Judicial) - The controversy in the present original applicant is well settled. The applicant who is 72 years old is manly praying following reliefs: (a) Quash the impugned orders A-17, A-19 and A-24 being issued arbitrarily, malafied and illegally by the respondents. (b) Direct the respondents to release the pensionary benefits to the applicant in accordance with A-16 with all attendants and consequential benefits and interest on thed arrears thereof with 18% per annum till the date of payment. 2. The applicant is aggrieved by the action of the respondents whereby they are not paying the restored value of commuted pension at .par with other government employees along with all attendant benefits. The facts as pleaded in the original application are that the applicant joined the service with the state Government on .20.1.1950 under the respondent No. 1 On 12.2.1981 (Annexure A-1), the services of the applicant were placed as a Project Implementation Officer with the Agro industries Corporation on deputation. Accordingly, the applicant gave his joining report on 10.3.1981 (Annexure A-2) on deputation for appointment as Project Implementation Officer in H.P. Agro Industries Corporation. Thereafter on 30.1.1982 (Annexure A-3) the H.P. Agro Industries Corporation gave an option to the applicant for being permanently absorbed in their Corporation. The applicant duly gave his consent for being permanently absorbed on 30.1.1982(Annexure A-4). On 28.4.1982 (Annexure Ar5) the General manager of H.P. Agro Industries Corporation took up the matter with the respondent State for permancent absorption of the applicant alongwith all the relevant documents and the resolution No. 8(V) passed by the Board off Directors on 3.4.1982 (A-6). On 10.5.1982 (Annexure A-7) a formal resignation letter dated 5.5.1982 (Ann. A-8) of the applicant was also forwarded for the formal acceptance by the Government. The said resignation of the applicant was formally accepted on 24.5.198(Ann.A-9w.e.f. 4.5.1982 for being absorbed in the H.P. Agro Industries Corporation w.e.f. 5.5.1982. It is stated that a letter of absorption of the applicant in the H.P. Agro Industries Corporation w.e.f. 5.5.1982 was also issued on 10.5.1982 (Annexure A-10). The applicant thus retired from the post of Block Development Officer. 3. The applicant has by then put in about 32 years of service with the State Movement at the time of his formal resignation. The applicant has opted on 26.10.1982 (Annexure A-110 for the receiving lump-sum amount in lieu of pension. The applicant thus retired from the post of Block Development Officer. 3. The applicant has by then put in about 32 years of service with the State Movement at the time of his formal resignation. The applicant has opted on 26.10.1982 (Annexure A-110 for the receiving lump-sum amount in lieu of pension. The relevant provisions of the CCS(pension) Rules governing the same are as under: Rule 37: Pension of absorption in or under a corporation, body: (1) A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or a State Government, shall be deemed to have retired from service from the date of such absorption subject to sub-rule(3) he shall be eligible to receive retirement benefits which he may be elected, or deemed to have elected, and from such date as may be determined, in accordance with the orders of the Central Government applicant (sic-applicable) to him. Explanation: Date of absorption shall be: (i) in a case of Government employee joins a Corporation or a company or body on immediate absorption basis the date on which he actually jolins that corporation or company or body; (ii) in case a Government employee initially joining a lien under the Government, the date from which his unqualified resignation is accepted by the Government. (2) The provisions of sub-rule (1) shall also apply to Central Government Servants who are permitted to be absorbed in joint sector undertakings, wholly under the joint control of Central Government and State Government/Union Territory Administration or under the joint control of two or more State Governments/ Union Territory Administrations. (3) Where there is a pension scheme in a body controlled or financed by the Central Government in which a Government servant is absorbed, he shall be entitled to exercise option either to count the service rendered under the Central Government in that body for pension or to receive pro-rata retirement benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government. explanation: Body means autonoumous body or statutory body. Rule 37-A. Payment of Lump-sum amount to person on absorption in or under a Corporatiuon, compo any or body. explanation: Body means autonoumous body or statutory body. Rule 37-A. Payment of Lump-sum amount to person on absorption in or under a Corporatiuon, compo any or body. (1) Where a Government servant referred to in Rule 37 elects the alternative of receiving the (retirement gratuity) and a lump sum amount inlieu of pension he shall in addition to the (retirement gratuity) be granted: (a) On an application made in this behalf,, a lump sum amount not exceeding the commuted value of one-third of his pension as may be admissible to him in accordance with the provisions of the Civil Pensions (Commutation) Rules, and (b) Terminal benefits equal to the commuted value of the balance amount of pension left after commuting one third of pension to be worked out with reference td the commutation tables obtaining on the date from which the commuted value becomes payable subject to the condition that the Government servant surrenders his right of drawing two third of his pension". 4. The respondent No. 2 has worked out the lump sum retrial, payments of the applicant on 2.7.1983 (Annexure A-12) and the same were duly paid to the applicant/After Expiry of 15 years the applicant was entitled for restoration of pensionary benefits i.e. 1/3rd in accordance with the rules and regulations governing the subject as well as the Law laid down by the Honble Apex Court in AIR 1996 SC 1201 titled as Welfare Association of Absorbed Central Government Employees in Public Enterprises Vs. Union of India followed in AIR 1989 SC 2862, wherein the Honble Apex Court has categorically held that the respondents are liable to restore not only the pension as ordered in the earlier judgment, but also the attendnt benefits as given to the Central Government pensioner. Even this Tribunal has also decided the issue in OA No. 1304/97 titled as M.K. Mahajan Vs. State of HP and others, OA. No. 1305/97 M.L. Jaggi Vs State of H.P. and OA No. 1399/97 M.L Aggarwal Vs. State of H.P. (Annexure-A-13). 5. The applicant also taken up the matter with the respondents on 25.1.1999 (Annexure A-14) stating therein that he is entitled for restoratioin of his pension after 15 years from the date of retirement from government service which in the case of the applicant started from 5.5.198? and as such the applicant became eligible for restoration of his pensionary benefits w.e.f. 5.5.1997. and as such the applicant became eligible for restoration of his pensionary benefits w.e.f. 5.5.1997. In pursuance to this the respondent department forwarded the case of the applicant to the respondent No. 2 on 27.10.1999 (Ann.A-15). It is also submitted that even the respondent department has forwarded the case of the applicant for revision off pension on 4.10.99 (Ann.A-16) wherein the notional pension of the applicant was correctly fixed at Rs. 4556/- and the applicant was entitled for 1/3 of this pension0along with DA and ADA on the full pension at the rates fixed from time to time. 6. It is averted that respondent No. 2 instead of fixing and restoring the pension of the applicant as per A-16; has arbitrarily and illegally fixed the pension of the applicant as Rs. 239 against PPO No. 1078/HP with further condition that this amount of Rs. 239/- shall not be raised ton minimum and the relief will be payable only on Rs. 239/-and not on full pension. 7. The applicant has made many representations to the respondents to rectify their illegal action. In such a bid the applicant has made a representation on 22.5.2000 (Annexure A-18) requesting therein that the pension be fixed by giving the benefit of revision in 1986 and subsequently in 1996. In response to this, the respondent No. 2 has rejected the plea of the applicant vide their letter dated 3.7.2000 (Annx. A-19). The applicant once again eleborated his point of view vide representation dated 27.9.2000 (Annx. A-20) but the same also met the same fate vide letter (Annexure A-21). The applicant is now being paid pension @ Rs. 239/- per month plus ADA on the same (Annexure A-22 and A-23) without any attendant and consequential benefits which have accrued in favour of the applicant by virtue of similar benefits being granted to other Government employees who have not opted 100% commutation in view of the clarification by the Honble Apex Court. Now vide letter dated 12.1.2001 (Annexure A-24) it has been intimated to the applicant that the State government has not issued any order for restoration of 100% pension. Such a reply of the respondents is illegal as well as contemptuous of orders of the Honble Apex Court in as much as the law laid down by the Honble Apex Court is binding on all authorities. 8. Such a reply of the respondents is illegal as well as contemptuous of orders of the Honble Apex Court in as much as the law laid down by the Honble Apex Court is binding on all authorities. 8. The reply has been filed by respondent No.2 and the same has been adopted by the Ld. Additional Advocate General. It is stated that the commuted portion of the pension has already been restored in terms of Government of Himachal Pradesh Finance Department OM dated 15.12.97 on April, 2000, 1/3 commuted portion of the pension was restored 15 years after the date of drawal of the commuted value or 70 years of age whichever is earlier in terms of Government of HP. Letter dated 15.12.97. 1/3 rd portion of the pension was restored w.e.f. 7.4.99. It is stated that the applicant has applied for restoration of commuted portion of pension along with other attendant benefits after 15 years from the date of retirement and not after 15 years from the date of drawl of commuted value of pension in terms of Government of Indias OM dated 14.7.98 issued by the Central Government for central pensioners on the basis of judgement passed by the Apex Court and the judgement of this Tribunal in the similar case. The State Government (Finance Department) has made reference to this effect to Government of India seeking clarification in terms of Government of Indias OM dated 14.7.1998 are not automatically applicable to the H.P. Pensions/absorbees and the matter is under consideration of the Government and a decision is yet to be taken. It is also clarified that the instructions contained in Government of H.P. Finance Department OM dated 15.12.97 arte applicable to the H.P. Pensioners/ absorbees. The respondent No. 1 vide its letter dated 12.1.2001 (Annexure A-24) on the basis of letter dated 30.8.2000 (Annexure A-21) issued by the replying respondent has intimated that the State Government of HP. has not issued any orders regarding revision of pension of absorbees w.e.f. 1.1.86. 9. Time was sought twice by the Ld. Additional Advocate General that the matter is being pursued, but nothing has been done. 10. I heard the Ld. Additional Advocate General and the Ld. Counsel for the applicant and gone through the pleadings, record and the case carefully. 11. 9. Time was sought twice by the Ld. Additional Advocate General that the matter is being pursued, but nothing has been done. 10. I heard the Ld. Additional Advocate General and the Ld. Counsel for the applicant and gone through the pleadings, record and the case carefully. 11. The Honble Apex Court in a judgment dated 15.12.1995 in Welfare Association of Absorbed Central Government Employees in Public Enterprises Vs Union of India reported in (1996) 2 SCC 187: (1996 AIR SCW 1212), inter alia, has held as under: "From the above extracts, it will be seen that a clear-cut distinction is made in Rule 37-A itself between one third portion of pension to be commuted without any condition attached and two third portion of pension to be received as terminal benefits with condition attached with it. It follows that so far as commutation of one third of the pension is concerned, the petitioners herein as well as petitioners in "Common cause" case (1987) (1) SC 142: (1987) 2 80 C 100: (1987(1) SC 497 stand on similar footing with no difference. So far as the balance of two third pension is concerned, the petitioners herein have received the commuted value (terminal benefits) on condition of their surrendering of their right of drawing two thirds of their pension. This was not the case with the pensioners in "Common Cause" case 1987 (1) SCC 142. That being position the denial of benefit given to "Common Cause" petitioner to the present petitioner violates Articles 14 and 16 of the Constitution. The reasoning for restoring one third commuted pension in the case of "Common Cause" 1987 (1) SCC 142; 1987 (2) 80C 100; (1987) (1) SCR page 497 petitioner equally applies to the restoration of one third commuted pension in the case of these petitioners as well." "If after the expiry of 15 years, the petitioner who have opted for one third commutation of pension, become entitled for restoration of pension on the ground that lump-sum amount paid had got adjusted before the said period as held in (SCC cases ) 1987 1 SCC 142, there is no good reason for not applying the same to the pensioners who have commuted their one-third portion of pension under the Rule 37-A of the CCS (pension Rules), 1972 without any commitment for this portion of commutation. Presumably the respondents realizing fallacy have withdrawn the Scheme of permitting the commutation of full pension by Om 4/43/91-P&pW (D) dated 31.3.1995 para 3 of the Office Memo read as follows: "3. The proposal to review existing terms and conditions of the absorption had been under consideration of the Government for quite some time past. The President is now pleased to (SIC) that existing terms and conditions of absorption shall stand partially modified to the extent indicated below:- a) The existing facility of receiving capitalization value equivalent to 100% commutation of pension on absorption shall stand withdrawn; b) The existing facility to draw prorate monthly pension from the date of absorption (with option to commute q/3rd pension wherever admissible shall continue to exist)". This means this issue will not arise in future. 12. For the foregoing reasons, we held that the petitioners are entitled to the benefits as given by this court in "common cause" case so far as related to restoration of one-third of the commuted pension. Consequently, the impougned para of the Memo dated 5.3.1987 is quashed. The writ petitions are accordingly allowed to the extent indicated above. No. Costs." 13. Similarly, the Honble Apex Court in Welfare Association of the Absorbed Central Employees in Public Enterprises Vs. Union of India reported in 1999 (9) SCC 58 has also held as under: 6." After hearing counsel on both sides, we made it clear that the respondents are liable to restore not only the pension as ordered by this court in the said judgement, but also all the attendant benefits as given to the Central Government pensioners. We hold that there was some genuine doubt on the part of the respondents in construing and giving effect to the judgement of this court and, therefore/there is no contempt. We now direct the respondents to comply with the judgement of this court and therefore, there is no contempt. We now direct the respondents to comply with the judgement of this court and therefore, there is no .contempt. We now direct the respondents to compoly with the judgement of this court as explained hereinbefore within three months from this date." It is well settled in the Article 141 of the Constitution of India that Law declared by Hon’ble Apex Court is a binding on all the courts. We now direct the respondents to compoly with the judgement of this court as explained hereinbefore within three months from this date." It is well settled in the Article 141 of the Constitution of India that Law declared by Hon’ble Apex Court is a binding on all the courts. This Tribunal accordingly decided as many as four O. As on the similar grounds which are OA No. 1466/91 titled as S.N. Sharma. Vs. State of H.P., OA. No. 1304/97 M.K. Mahajan Vs. State of HP., OA 1305/99 N.N. Jaggi Vs. State of H.P. and OA. No. 1399/97 M.L Aggarwal Vs. State of H.P. The condition raised by the respondents have been taken care in this earlier judgement of the Tribunal and the applicants herein have been given the benefits there under. 14. The pension is not only a compensation for service rendered in the past but also by broader significance is that it is a social welfare measure rendered socio economic justice by providin economic security in the fall of life when physical and mental process is ebbing corresponding aging process and, therefore, one is required to fall back on savings. One such security in kind is, when one is given in the hay days of life by his employer in invalidating economic security by way off periodical payment is assured, therefore it is a sort of stipend may in consideration of past service or a surrender off rights or emoluments but when retired from service. The petitioner has earned by rendering long and efficient service and thus it can be said to be deferred portion of the compensation for service rendered. In one sentence one can say that the less practicable raisondetre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not sanctity and penury if there is nothing to fall back upon. The applicant in the present original application is 72 years of age and is not, in a position to do any work except to depend upon the pensionary benefits in this advanced old age. He is not supposed to be left in the lurch towards the sunset of his life. As such the action of the respondents in not paying him the pensionary benefits is illegal and arbitrary. 15. He is not supposed to be left in the lurch towards the sunset of his life. As such the action of the respondents in not paying him the pensionary benefits is illegal and arbitrary. 15. In view of the above discussions and legal background, I allow the present application and quash the impugned orders (Annexure A-17) and (Annexure A-19) and (Annexure A-24) issued arbitrarily, malafidely, illegally by the respondents and further direct the respondents to release the pensionary benefits to the applicant in accordance with (annexure A-16) with all attendant and consequential benefits like medical reimbursement etc. as are applicable to other H.P Government Pensioners from time to time as have been given by this Tribunal in the similar cases and the interest of the arrears @ 12% p.a. These directions be complied with within a period of one month from the date of this order. 16. The original application is disposed of in the light of above directions. No orders as to costs.