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Rajasthan High Court · body

2005 DIGILAW 1536 (RAJ)

Om Prakash Vyas v. State of Rajasthan

2005-05-23

R.P.VYAS

body2005
Honble VYAS, J.–The instant petition has been filed by the petitioner with the prayer that the order dtd. 8.4.2003 (Annex. 13) may kindly be quashed and the petitioner may kindly be ordered to be paid the pension and modified gratuity and leave salary by taking into consideration the full span of service from the date of his appointment with appropriate rate of interest. (2). The brief facts of the case are that the petitioner was initially appointed as Salesman vide order dtd. 9.8.68 (Annex. 1) under the respondent No. 2. (3). The petitioner was promoted to the post of Supervisor vide order dtd. 20.2.1986 (Annex. 1A). (4). It has also been averred in the writ petition that the petitioner was placed under suspension vide order dtd. 12.2.1987 (Annex. 2). However, after departmental enquiry, the petitioner was exonerated vide order dtd. 22.5.1990 (Annex. 3). Thus, the suspension of the petitioner was nonest. (5). It has also been averred in the writ petition that State Government issued an order of liquidation of the Bhandar in the year 1987 and as a consequence whereof, the services of the petitioner were terminated vide order dtd. 12.6.1987 (Annex. 4). (6). Further case of the petitioner is that against the order of termination on account of liquidation of Bhandar, employees of the Bhandar filed a writ petition and some of the employees raised the dispute before the Labour Court. (7). Further case of the petitioner is that the controversy involved in the instant petition has been set at rest by the Division Bench of this Court in D.B. Civil Special Appeal No. 807/1993 decided on 7.10.1996 (Annex. 5). The Division Bench of this Court held that since the liquidation order of Bhandar was withdrawn by the State Government, the status quo ante ought to have been maintained and it was the duty of Bhandar to immediately call the employees working before the liquidation and ought to have restored their services. This Court accordingly directed that the petitioner therein be taken back in service from the date of revival of the Bhandar with continuity of service, as if he had never been terminated, but in peculiar circumstances of the case, the petitioner was paid 50% back wages. Similar writ petition No. 5808/1992 has also been allowed vide order dtd. 14.1.1997 (Annex. 6) in view of Division Bench judgment in the case of Poonam Chand (supra). (8). Similar writ petition No. 5808/1992 has also been allowed vide order dtd. 14.1.1997 (Annex. 6) in view of Division Bench judgment in the case of Poonam Chand (supra). (8). The petitioner was also reinstated in service on 4.2.1994 and was placed in the pay scale of Rs. 1400-40-1800 EV 50-2300. (9). Further case of the petitioner is that since he was given less salary than his juniors, he made a representation before the respondent No. 2 and on the representation, an order dtd. 16.1.1999 (Annex. 8) was passed modifying the pay scale and salary of the petitioner and the petitioner was fixed in the pay scale of Rs. 1400-2600 and was fixed at the basic scale of Rs. 2100/-. (10). Further case of the petitioner is that he was neither paid the full salary of suspension period after his reinstatement nor he was paid his arrears of outstanding salary which ought to have been paid to him for the period for which he remained out of job during the liquidation of Bhandar and the arrears after his reinstatement on 4.2.1994 till the date on which he was given regular salary in terms of decision of this Court in the case of Poonam Chand (supra). (11). When the petitioner was not granted the admissible benefit, he submitted a representation on 19.10.2000 to the respondent No. 2 stating inter alia that in terms of pronouncements of this Court and in terms of the recommendations of the members of the Board in its meeting held on 16.1.1999. (12). Despite the submission of representation, the petitioners case was not considered till the date of his retirement i.e. 30.6.2001. (13). Even after retirement of the petitioner, he has not been paid any pension on the ground that he has not completed 10 years of services after his reinstatement in the year 1992 i.e. after withdrawal of liquidation order of Bhandar by the State Government. (14). It has also been averred in the writ petition that the Division Bench of this Court in the case of Poonam Chand (supra) made the position clear that all the employees would be deemed to have been in continuous service as if there was no break in service due to nonest liquidation order. (14). It has also been averred in the writ petition that the Division Bench of this Court in the case of Poonam Chand (supra) made the position clear that all the employees would be deemed to have been in continuous service as if there was no break in service due to nonest liquidation order. In this view of the matter, the petitioners services ought to have been considered w.e.f. his date of appointment i.e. 1968 and he ought to have been paid full pension as per Rules. Similarly the petitioner has been paid the gratuity only be considering his service from 1992 till the date of his superannuation and the leave balance of the petitioner has also been considered w.e.f. 1992, whereas he should have been granted the benefit of gratuity and leave encashment w.e.f. 1968. (15). In this writ petition, the main contention of the learned counsel for the petitioner is that in the Departmental enquiry, the petitioner was exonerated vide order dtd. 22.5.1990 (Annex. 3) and thus, he is entitled to get full salary during the period of his suspension and other admissible benefits as per law. (16). The learned counsel for the petitioner further submitted that on account of withdrawal of liquidation order by the State Government and in view of the Division Bench Judgment and Single Bench of this Court, the petitioner ought to have been restored to his original position and his continuity of service ought to have been taken into consideration. (17). The learned counsel for the petitioner has further submitted that the Members of the Board of the Bhandar have also taken a decision to impart justice to the petitioner and to grant relief to the petitioner in its meeting held on 16.1.99, but for the reasons unknown and unexplainable, the respondent No. 2 has turned over and has denied just and reasonable retiral benefits of the petitioner. (18). On the other hand, the learned counsel for the respondents has submitted that the judgment dtd. 7.10.1996 (Annex. 5) was not judgment in rem, but the relief was granted to the applicants only. The petitioner never raised any grievance with regard to termination of his services and, therefore, the judgment dtd. 7.10.1996 is having no consequence in the present controversy. (19). 7.10.1996 (Annex. 5) was not judgment in rem, but the relief was granted to the applicants only. The petitioner never raised any grievance with regard to termination of his services and, therefore, the judgment dtd. 7.10.1996 is having no consequence in the present controversy. (19). The learned counsel for the respondents has also submitted that after revival of liquidation the petitioner was re-appointed in the services of Bhandar and therefore, the services of the petitioner for the pension purposes shall be counted from the date of reappointment after withdrawal of liquidation order of Bhandar by the State Government. (20). The learned counsel for the respondents has also submitted that the suspension period of the petitioner has merged into his termination and therefore, he is not entitled to get benefit of full salary during the period of his suspension and other admissible benefits. (21). Heard the learned counsel for the parties and scanned and examined the material on record. (22). Admittedly, the retiral benefit has been granted to the similarly situated persons in compliance of judgment dtd. 7.10.1996 (Annex. 5). However, the said benefit has been denied to the petitioner only for the reason that the judgment dtd. 7.10.1996 (Annex. 5) is not a judgment in rem, but is a judgment in persona. Since the petitioner did not challenge the order of his termination on account of liquidation, therefore, he is not entitled to get any benefit in pursuance of judgment dtd. 7.10.1996 (Annex. 5). (23). In my opinion, the denial of retiral benefits to the petitioner while counting his services from the date of his initial appointment i.e. 1968 is absolutely illegal. (24). Admittedly, the petitioner was initially appointed in the services of Bhandar on 9.8.1968. He remained in the services of Bhandar till liquidation of Bhandar and his services were terminated vide order dtd. 12.6.1987 after liquidation of Bhandar in the year 1987. After that liquidation was withdrawn by the State Government and the employees of the Bhandar were taken on duty. Similarly, the petitioner was also reinstated in service. (25). He remained in the services of Bhandar till liquidation of Bhandar and his services were terminated vide order dtd. 12.6.1987 after liquidation of Bhandar in the year 1987. After that liquidation was withdrawn by the State Government and the employees of the Bhandar were taken on duty. Similarly, the petitioner was also reinstated in service. (25). The Division Bench of this Court has also directed in the case of Poonam Chand (supra) that the petitioner therein is to be taken back in service w.e.f. date of revival of the Bhandar with continuity of service as if he had been serving the Bhandar from that date, but in the peculiar circumstances of the case, he shall be paid 50% of the back wages on the ground that he must have earned something to sustain himself during this long period. (26). The petitioner is also similarly situated to that of Poonam Chand and other employees who have been reinstated in service with continuity of service. Thus, the petitioner is entitled to reinstatement with continuity of service and his services for the purpose of pension is to be counted from the date of his initial appointment i.e. 9.8.1968. (27). The petitioner was also placed under suspension vide order dtd. 12.2.1987 doing pendency of a departmental enquiry and the petitioner was exonerated in the departmental enquiry vide order dtd. 22.5.1990 (Annex. 3), thus, the suspension order of the petitioner was nonest and the petitioner is entitled to get arrears during the period of his suspension strictly in accordance with law. (28). The learned counsel for the respondents has submitted that the suspension of the petitioner has merged into his termination. This argument raised by the petitioner is not sustained as the petitioner was suspended on account of pendency of departmental enquiry and after departmental enquiry, he was exonerated of the charges levelled against him. Thus, the suspension order of the petitioner was nonest and that being so, the petitioner is entitled to get the admissible benefits during the period of suspension strictly in accordance with law as well as in light of the observations made by this Court in the case of Poonam Chand (supra). (29). For the reasons mentioned above, the present writ petition is allowed. The order dtd. 8.4.2003 (Annex. (29). For the reasons mentioned above, the present writ petition is allowed. The order dtd. 8.4.2003 (Annex. 13) is quashed and set aside and the respondents are directed to pay pension, gratuity and leave salary to the petitioner by taking into consideration the full span of service from the date of his initial appointment i.e. 9.8.1968. The respondents are also directed to pay all admissible benefits to the petitioner during the period of his suspension strictly in accordance with law as well as in light of the observations made by this Court in the case of Poonam Chand (supra), within a period of two months from the date of receipt of this order. (30). No order as to costs.