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2006 DIGILAW 371 (HP)

Kalyan Singh v. State of H. P.

2006-11-24

VIJAY PAL SINGH

body2006
JUDGMENT Vijay Pal Singh, Member (A) 1. The applicant herein has claimed the following reliefs: (i) That the Respondents may be directed to give pension to the applicant w.e.f. the date his services were transferred/absorbed in the Forest Corporation with all consequential benefits. (ii) that any other relief to which the applicant may be found entitled may also be granted. 2. In brief, the case of the applicant as made out in this Original Application is that the applicant joined Rosin and Turpentine Factory, Nahan as a skilled worker w.e.f. June, 1963 which was controlled by the Industries department at that time and later on the management of the said Factory was taken over by the Forest department and ultimately the services of the applicant were absorbed by the Forest Corporation in the year 1978 and the applicant has retired from service w.e.f. June 30, 1997. That as per the pension rules of Central Civil Service, which are applicable to the Government Departments in Himachal Pradesh also, the applicant was entitled to the pension on his absorption in the Corporation because as per the said pension regulations a Government employee who has been absorbed in any autonomous body or public undertaking is entitled to the pension if he had rendered minimum 10 years of service in the Government Department before his absorption in the said body or undertaking. The applicant had rendered more than 15 years of service before his services were taken over by the Corporation. That not to pay the pension by the Government to the applicant is unjustified, arbitrary and violative of Articles 14 and 16 of the Constitution, hence, this Original Application. 3. The claim of the applicant has been contested by the Respondents. In his reply, Respondent No. 1 has stated that the applicant was appointed as temporary unskilled worker on 17.7.1963. He was regularized as unskilled worker on 1.12.1964. At the time of transfer of Rosin and Turpentine Factory from Forest department to H.P. State Forest Corporation on 1.4.1974, the applicant was still unskilled regular worker. The applicant has retired from service by H.P. State Forest Corporation w.e.f 30.6.1997. H.P. Rosin and Turpentine Factory Nahan, remained under Industry/Forest Department up to 31.3.1974. Prior to 1.4.1974. At the time of transfer of Rosin and Turpentine Factory from Forest department to H.P. State Forest Corporation on 1.4.1974, the applicant was still unskilled regular worker. The applicant has retired from service by H.P. State Forest Corporation w.e.f 30.6.1997. H.P. Rosin and Turpentine Factory Nahan, remained under Industry/Forest Department up to 31.3.1974. Prior to 1.4.1974. Employees of the Factory were enjoying benefits as per standing order under Section No. 3 of Industrial Employment (Standing Orders) Act, 1946 which was got amended by the H.P. Forest Corporation in the year 1975. Since, there was no provisions for granting pension to the Factory workers under the Standing orders approved by the Government so applicant was not paid any pension as none of Factory workers was given benefits of pension at the time of retirement. 4. Respondent No. 2 has adopted the reply filed by Respondent No. 1. 5. In their reply Respondents No. 3 and 4 have stated that applicant was considered to work in H.P. Forest Corporation on the rates of pay and allowances as was admissible in Corporation. The employees of the factory were enjoying benefits as per Standing Order under Section 3 of Industrial Employment (S.O.) Act, 1946. After taking over control of Rosin and Turpentine Factory Nahan during April 1974, Standing order which was in existence was got amended by H.P. Forest Corporation Ltd. from the Deputy Labour Commissioner (Certifying Officer) H.P. Shimla copy whereof is at Annexure R-l. Since there was no provision for granting pension to the factory workers under the Standing order approved by the Government so he was not paid any pension. The applicant was given benefits at time of his retirement as admissible under clause No. 32 (other condition) of said Standing orders. 6. In rejoinder to the reply filed by Respondent No. 1, the applicant has stated that the applicant was a regular employee of the Forest department and has rendered more than 10 years service before absorption in Forest Corporation permanently in the public interest. The applicant is entitled to the pension under the Central Civil Services Pension Rules of 1972 which are applicable to the Government employees serving in the State of Himachal Pradesh. The applicant has got no concern with the Standing Order of the Corporation as he has not claimed any benefit from the Corporation. 7. The applicant is entitled to the pension under the Central Civil Services Pension Rules of 1972 which are applicable to the Government employees serving in the State of Himachal Pradesh. The applicant has got no concern with the Standing Order of the Corporation as he has not claimed any benefit from the Corporation. 7. I have heard the learned Counsel for the applicant, learned Deputy Advocate General for Respondent Nos. 1 and 2 and learned Counsel for Respondents No. 3 and 4 and perused the material on record including standing order of July 1965 placed on record by the learned Deputy Advocate General. 8. The learned Counsel for the applicant argued that the applicant was a regular employee of the Forest department and has rendered more than 10 years qualifying service before absorption in Forest Corporation permanently in the public interest. Therefore, the applicant is entitled to the 'pro rata' pension under the CCS Rule 49 of C.C.S. (Pension) Rules of 1972 from the Forest department. The Forest Corporation is a formal party and applicant is not claiming any benefit/relief from Forest Corporation. He has cited following cases in support of his arguments for pension from Forest department: (i) Kesri Devi v. Municipal Corporation of Delhi 2005 (2) SLR 113. (ii) Neela Ram and Ors. v. State of H.P. and Ors. O.A. 77/87 decided on 24.3.1995. 9. The learned Deputy Advocate General has argued that C.C.S. Pension Rules of 1972 are not applicable in the instant case because the service conditions of the employees (as the applicant was) of the Rosin and Terpentine Factory were, regulated by the Standing order of the year 1965 duly certified by the Labour Commissioner (Certifying Officer) as required under Section 3 of Industrial Employment (Standing Orders) Act, 1946 which was further amended in the year 1975. There is no provision for granting pension to the Factory workers under the Standing Orders so the applicant is not entitled to pension. 10. As per Section 2(g) of the Industrial Employment (Standing Orders) Act, 1946 "Standing Orders" means rules relating to matters set out in the schedule. As per the Schedule following matters to be provided in the Standing Order under this Act: 1. Classification of workmen e.g. whether permanent, temporary, apprentices, probationers, or badlis. 2. Manner or intimating to workmen periods and hours of work, holidays, pay days and wage rates. 3. Shift working. 4. As per the Schedule following matters to be provided in the Standing Order under this Act: 1. Classification of workmen e.g. whether permanent, temporary, apprentices, probationers, or badlis. 2. Manner or intimating to workmen periods and hours of work, holidays, pay days and wage rates. 3. Shift working. 4. Attendance and late coming. 5. Conditions of, procedure in applying for, and the authority which may grant, leave and holidays. 6. Requirement to enter premises by certain gates and liability to search. 7. Closing and re-opening of Sections of the industrial establishment, and temporary stoppages of work and the rights and liabilities of the employer and workmen arising therefrom. 8. Termination of employment and the notice thereof to be given by employer and workmen. 9. Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct. 10. Means of redress for workmen against unfair treatment or wrongful exactions by the employer or his agents or servants. 11. Any other matter which may be prescribed. 11. Thus, the Standing Orders only provide the Service Conditions as are mentioned in the Schedule in view of the preamble of the Standing Orders Act, 1946. Moreover, the Standing Orders besides being silent about the pension, nowhere debar the applicant to get the pension. In last paragraph of Clause 31 of Standing Orders of 1965, it has been specified "Nothing contained in the Standing Orders shall operate in derogation to any law applicable to the establishment or to the prejudice of any right under any agreement, settlement or award for the time being in force or contract of service, if any or custom or usage. In view of this position, case of the applicant for the grant of pro rata pension for the regular service rendered by him under Forest department is required to be considered under CCS. (Pension) Rules. 12. It is admitted case of the parties that the applicant was initially appointed as temporary unskilled worker on 17.7.1963. He was regularised as unskilled worker on 1.12.1964 and was working as such under Forest department till 1.4.1974 when the management of the Rosin and Turpine Factory was transferred to Forest Corporation. Thus, the applicant has rendered one year and four months service as temporary unskilled worker (17.7.1963 to 30.11.1964) and 9 years and four months service as regular unskilled worker (1.12.1964 to 31.3.1974) under Forest Department. 13. Thus, the applicant has rendered one year and four months service as temporary unskilled worker (17.7.1963 to 30.11.1964) and 9 years and four months service as regular unskilled worker (1.12.1964 to 31.3.1974) under Forest Department. 13. The definition of qualifying service in Rule 3(q) of Central Civil Services (Pension) Rules is as under: Qualifying service" means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules. Rule 13 of CCS. (Pension) Rules further stipulates as to the period of commencement of qualifying service. Same is as under: 13. Commencement of qualifying service.--"Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he lakes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity: Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post: Provided further that-- (a) in the case of a Government servant in a Ground 'D' service or post; who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose and (b) in the case of a Government servant not covered by Clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity. In Kesri Devi v. Municipal Corporation of Delhi 2005 (2) SLR 113, the Hon'ble High Court of Delhi has held that, "it would be seen that qualifying service is to commence from the date an employee takes charge of a post to which he or she is first appointed either substantively or in an officiating or temporary capacity. It is thus clear that the period of qualifying service is to commence from the date of taking charge either substantively or in an officiating or temporary capacity. In the instant case, it is not disputed before me that she joined the duty in 1975 and took charge as a sweeper (safai karamchari) in an ad hoc capacity. Hence the period of commencement of qualifying service would be from 1975 and thus, she would be entitled to pension. In the instant case, it is not disputed before me that she joined the duty in 1975 and took charge as a sweeper (safai karamchari) in an ad hoc capacity. Hence the period of commencement of qualifying service would be from 1975 and thus, she would be entitled to pension. Writ of mandamus shall issue to Respondent to compute the pension of the Petitioner within four weeks from today and disburse the arrears of the same immediately thereafter and the monthly pension in future. 14. In view of above decision of Hon'ble High Court, in the instant case, the qualifying service of the applicant is to commence from 17.7.1963 the date he joined the duty as temporary unskilled worker. Thus the applicant has rendered 10 years and 8 months qualifying service under Forest department before the transfer of Rosin and Turpentine Factory from Forest department to H.R State Forest Corporation on 1.4.1974 and his subsequent absorption in Forest Corporation in public interest. 15. In Neela Ram and Ors. v. State of H.P. and Ors. O.A. No. 77/87 (decided on 24.3.1995), the applicants who have served the Forest department in different capacities for thirteen to fifteen years and thereafter their services were placed at the disposal of H.P. State Forest Corporation, have prayed, for regularisation and confirmation with all consequential benefits, the Division Bench of this Tribunal has directed the Respondents to treat the applicants to have been confirmed against the permanent posts prior to their absorption in the Forest Corporation and to pay them the pensionary benefits. The Respondents are directed to release all the pensionary benefits to the applicants alongwith interest @ 12% per annum within a period of three months after deducting the terminal gratuity already paid to the applicants, if any. Thus, in view of above settled position, the applicant is entitled to pensionary benefits in respect of his qualifying service service rendered by him w.e.f. 17.7.1963 to 31.3.1974 under Forest department, prior to his transfer and absorption in H.P. State Forest Corporation. 16. Thus, in view of above settled position, the applicant is entitled to pensionary benefits in respect of his qualifying service service rendered by him w.e.f. 17.7.1963 to 31.3.1974 under Forest department, prior to his transfer and absorption in H.P. State Forest Corporation. 16. In view of the above conclusions, the Respondent No. 1 is directed to determine the pension payable to the applicant and start paying such monthly pension to him and also pay the gratuity and arrears of pension for the past with effect from the date immediately one year before the date of institution of the original application by the applicant after deducting the terminal gratuity already paid to the applicant, if any. This order be implemented within four months from today. This Original Application is disposed of in terms of above order with no order as to costs.