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2006 DIGILAW 2324 (PNJ)

Gandhi Ram v. State of Haryana

2006-05-24

M.M.KUMAR

body2006
JUDGMENT M.M. KUMAR, J. 1. This petition filed under Article 226 of the Constitution prays for issuance of direction to the respondents to pay him the pension and gratuity along with arrears. A further prayer has been made that interest @ 15% on the arrear of pension and gratuity be also paid. 2. The petitioner who is now represented by his Legal Heirs was working as a driver in the Haryana Roadways since 12.1.1961 and he retired as such on 1.3.1977 in the pay scale of Rs. 130- 205. At the time of his retirement, he was drawing basic salary of Rs. 160/ per month. It is claimed that at the time of retirement he was not paid any pension although in 1982 the respondent State had taken a decision to grant pension to all the employees of the Transport Department including the operational staff viz. Work Charged Staff, Drivers and Conductors etc. It is claimed that persons similarly situated to the petitioner had approached this Court and they were granted pension. In that regard primary reliance has been placed on a judgment of this Court in the case of Harbans Lal and others v. State of Haryana and others, 1986 (2) S.L.J. 290. A perusal of the aforementioned judgment shows that all the employees of the State Transport Service, who had not been confirmed against pensionable posts on 1.11.1955 were to be entitled to the concession of Contributory Provident Fund Scheme under the erstwhile State of Punjab and the rules known as the Punjab Contributory Fund Rules, contained in Chapter XIV of the Punjab Civil Services Rules, Volume II. According to Rule 3.17 (A) (i) of the Punjab Civil Services Rules, - Volume-I read with Note-I under Rule 14.4 (1), it is provided that a person contributing to the Contributory Provident Fund should not be entitled to pension. The State Transport later came to be known as The Punjab Roadways and on reorganisation of the State of Punjab, w.e.f. 1.11.1966, the State Transport, Punjab continued to be known as the Punjab Roadways while in the respondent State of Haryana,it came to be known as ‘The Haryana Roadways’. A scheme of pension was framed w.e.f. 1.7.1982 and those employees who had retired before 1.7.1982 were not to be entitled to the Scheme. A scheme of pension was framed w.e.f. 1.7.1982 and those employees who had retired before 1.7.1982 were not to be entitled to the Scheme. A learned Single Judge of this Court in Harbans Lal’s case (supra) held the fixation of date of 1.7.1982 as arbitrary and quashed the provision of the Scheme to that extent. It was directed by this Court in Harbans Lal’s case (supra) that monthly pension was to be worked out and payable to each petitioner. 3. The aforementioned factual position has not been disputed before me and it is conceded that the petitioner has retired from service on 1.3.1977 as driver. It is also admitted that the petitioner was member of Contributory Provident Fund Scheme (for brevity, ‘the CPF Scheme’), which was floated by the department wherein matching contribution used to be made by the respondent department. It is, thus, obvious that the petitioner was paid the amount of CPF on his retirement in 1977. 4. Having heard the learned counsel for the parties, the only question which need determination is as to whether the petitioner could be permitted to switch over to pension scheme, which became effective from 1982, after having retired in the year 1977. According to the learned counsel for the petitioner, he could be permitted to switch over to the pension scheme as has been provided in Harbans Lal’s case (supra) by directing respondents to adjust the amount paid to him under the CPF Scheme. The aforementioned submission of the learned counsel cannot be accepted because the judgment in the case of Harbans Lal (supra) stands overruled by a Full Bench of this Court in the case of Sher Singh Ghuman & another v. State of Harvana, 1992(1) RSJ 479. Before the Full Bench, many judgments of this Court including the judgment of Harbans Lal’s case (supra) were cited, as is evident from para 1 of the Full Bench judgment. The Full Bench after placing reliance on a Constitution Bench judgment of the Hon’ble Supreme Court in the case of Krishena Kumar & others v. Union of India, (1990) 4 SCC 207, had proceeded to overrule various judgments of this Court including the judgment in the case of Harbans Lal (supra) by observing as under: “6. The Full Bench after placing reliance on a Constitution Bench judgment of the Hon’ble Supreme Court in the case of Krishena Kumar & others v. Union of India, (1990) 4 SCC 207, had proceeded to overrule various judgments of this Court including the judgment in the case of Harbans Lal (supra) by observing as under: “6. In the light the above noted analysis of Nakara’s judgment, we find it wholly unnecessary to make a detailed reference to the rest of the judgments relied upon by the learned counsel for the petitioners. In some of these cases, the above noted analysis of Nakara’s case or the distinction between liability to pay pension and gratuity or provident fund was not taken notice of therefore, the said judgments to that extent obviously do not lay down good law and stand over-ruled to that - extent. “ 5. It is appropriate to mention that in Krishena Kumar’s case (supra), an earlier judgment of the Hon’ble Supreme Court in the case of D.S. Nakara v. Union of India, (1983) 1 SCC 305, was not applied and distinguished by observing as under: “32. In Nakara it was never held that both the pension retirees and the PF retirees formed a homogeneous class and that any further classification among them would be violative of Article 14. On the other hand the court clearly observed that it was not dealing with the problem of a “fund”. The Railway Contributory Provident fund is by definition a fund. Besides, the government’s obligation towards an employee under CPF Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the government in respect of the Provident Fund is finally crystallized and thereafter no statutory obligation continues. Whether there” still remained” a moral obligation is a different matter. On the other hand under the Pension Scheme the government’s obligation does not begin until the employee retires when only it begins and it continues till the death of the employee. Thus, on the retirement of an employee government’s legal obligation under the provident fund account ends while under the Pension Scheme it begins. The rules governing the Provident fund and its contribution are entirely different from the rules governing pension. Thus, on the retirement of an employee government’s legal obligation under the provident fund account ends while under the Pension Scheme it begins. The rules governing the Provident fund and its contribution are entirely different from the rules governing pension. It would not therefore be reasonable to argue that what is applicable to the pension retirees must also equally be applicable to PF retirees. This being the legal position the rights of each individual PF retiree finally crystallized on his retirement whereafter no continuing obligation remained the other hand, as regard Pension retirees, the obligation continued till their death. The continuing obligation of the State in respect of pension retirees is adversely affected by fall in rupee value and rising prices which SCC considering the corpus already received by the PF retirees they would not be so adversely affected ipso facto. It cannot therefore be said that it was the ratio decidendi in Nakara that the State’s obligation towards its PF retirees must be the same as that towards the pension retirees. An imaginary definition of obligation to include all the government retirees in a class was not decided and could not form the basis for any classification for the purpose of this case. Nakara cannot, therefore, be an authority for this case.” (emphasis added) 6. The judgment in the case of Krishena Kumar’s case (supra) has been followed and applied by the Hon’ble Supreme Court in the cases of Indian Ex-Services League v. Union of India, (1991) 2 SCC 104; State of Rajasthan v. Rajasthan Pensioner Samaj, 1991 Supp (2) SCC 141; and V.K. Ramamurthy v. Union of India, (1996) 10 SCC 73. The authoritative pronouncements by Hon’ble Supreme Court must be followed and it is law declared by the highest Court of the land, which is binding on all under Article 141 of the Constitution. 7. When the principles laid down in the aforementioned judgments are applied to the facts of the present case, it becomes evident that the petitioner had retired from service in 1977 far ahead the enforcement of the pension scheme, which was made applicable with effect from 1.7.1982. The Contributory Provident Fund payable to him had been paid on his retirement and his rights were determined at that stage. The Contributory Provident Fund payable to him had been paid on his retirement and his rights were determined at that stage. As per the view taken by the Constitution Bench in Krishena Kumar’s case (supra) and followed by a Full Bench of this Court in Sher Singh Ghuman’s case (supra), the obligation of the respondent State comes to an end after the Contributory Provident Fund is paid to the employee at the time of his retirement, whereas in the case of employees. governed by the pensionary scheme, the obligation commences and continues till his death. It is also subject to the payment of family pension. Therefore, it would not be possible to follow the principle laid down in Harbans Lal’s case (supra) anymore as those principles runs counter to the .Constitution Bench judgment of the Hon’ble Supreme Court in the case of Krishena Kumar’s case (supra) as well as the Full Bench of this Court in Sher Singh Ghuman’s case ( supra). 8. It remains to be considered the effect of the judgment in Harbans Lal’s case (supra). Despite the fact that the judgment has been overruled by a Full Bench of this Court in Sher Singh Ghuman’s case (supra), if the judgment in Harbans Lal’s case (supra) has been implemented, followed and applied to a large number of employees and the fixation of date of 1.7.1982 for implementation of the Pension Scheme has not been followed then it would not be fair to single out the case of the petitioner merely on the ground that the judgment in Harbans Lal’ s case ( supra) has been overruled. It would be appropriate to issue some directions to the respondents in that regard. Therefore, the respondent department is directed to consider the case of the petitioner vis-a-vis that of others who have been granted benefit in pursuance to the judgment of Harbans Lal’s case (supra). I If any person Who had retired from service in 1977 or earlier thereto, the case of the petitioner shall also be considered for granting benefit of the Pension Scheme and consequential benefits to the wife of the petitioner with regard to family pension. With the above directions, the writ petition stands disposed of.