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2010 DIGILAW 438 (PNJ)

State Of Punjab v. Karnail Singh

2010-01-19

RANJIT SINGH

body2010
Judgment RANJIT SINGH, J. 1. Respondent-plaintiff filed a suit for declaration impugning the order of his dismissal dated 26.9.2000 and so also to challenge the order dated 27.3.2001 passed by the departmental Appellate Authority and the order rejecting the revision filed by him on the ground that these orders are illegal, null and void, being against the rules and regulations governing the service of the respondent- plaintiff. 2. Respondent-plaintiff was enrolled as a Constable in June 1986 and was posted at Patiala during the year 1999. On 25.10.1999, he was deputed to perform duties in the civil Lines, Patiala, when he received a message that his father was seriously ill. Respondent-plaintiff rushed to his village. He thereafter did not return till 31.12.1999 on the plea that his father had expired and thereafter his mother expired after a gap of 15 days of death of his father. Still, the respondent-plaintiff was dismissed on 26.9.2000, which he would term as illegal. He filed an appeal against this order, which was dismissed by DIG, patiala Range, Patiala on 27.3.2001. The revision petition preferred by him was also rejected on 18.6.2002 and he accordingly has filed the suit, which was dismissed, against which the respondent preferred an appeal. The first appellate Court, though did not interfere in the order of dismissal passed against the respondent-plaintiff but held him entitled to retirement benefits as well as pensionary benefits since he had rendered 10 years qualifying service. The decree passed by the Trial Court was accordingly set-aside to this an extent with a direction to the appellants to consider the case of the respondent-plaintiff for grant of retirement/pensionary benefits. 3. Learned State counsel would submit that a substantial question of law in regard to right and entitlement of a dismissed employee to get pension and retiral benefits would arise in this case. As per the counsel, incidental questions would also arise in this regard to the effect whether the claim for retiral benefits/pension could be allowed despite there being no claim made in the suit in this regard. On the basis of these questions of law, notice was issued. Despite notice, no body has appeared to represent the respondent. The case is taken up for final disposal as the issue involved is short and simple. On the basis of these questions of law, notice was issued. Despite notice, no body has appeared to represent the respondent. The case is taken up for final disposal as the issue involved is short and simple. Substantial question of law that would arise in this case is "whether a dismissed employee can be entitled to pension and whether while upholding dismissal, the Court could allow pension even if it is not the case pleaded. " State counsel says that the respondent-plaintiff had filed a simple suit for declaration for setting-aside the order of dismissal. The trial court as well as the Ist Appellate Court dismissed the suit filed by the respondent-plaintiff and accordingly upheld the order of dismissal. According to the State counsel, unfairly the Appellate court has allowed pensionary benefits to the respondent on the ground that he had more than ten years of service. The Court has, in my view, wrongly considered the fact that nine years service, which was ordered to be forfeited, could be taken into consideration for grant of pension. Even otherwise, a dismissal from service would dis- entitle the respondent to claim pension. A satisfactory service is condition precedent for grant of pension. This aspect appears to have escaped the notice of the court. A dismissed employee is not entitled to pension. Reference here may be made to Rule 2.5 of Punjab Civil service Rules Volume 2 Chapter II, which says:- "2.5 No pension may be granted to a Government employee dismissed or removed for misconduct, insolvency or inefficiency; but to Government employee so dismissed or removed, compassionate allowances may be granted when they are deserving of special consideration: provided that the allowance granted to any government employee shall not exceed two-thirds of the pension which would have been admissible to him if he had retired on medical certificate. " 4. Thus, in case of removal, the entitlement of pension is statutorily taken away. Even the prayer for grant of pension was never made in the suit, but still it has been granted. The finding of the Ist Appellate Court allowing pension to the respondent, thus, cannot be sustained. 5. The State counsel would also draw my attention to the fact that manohar Lal Vs. Even the prayer for grant of pension was never made in the suit, but still it has been granted. The finding of the Ist Appellate Court allowing pension to the respondent, thus, cannot be sustained. 5. The State counsel would also draw my attention to the fact that manohar Lal Vs. The State of Punjab and another, 2009 (2) Service Law Reporter 420 case relied upon by the Lower Appellate Court was a case of compulsory retirement and not of a dismissal. That part of the finding, thus, cannot be sustained in law. Substantial questions of law as noted above, thus, would arise in this case. This question of law is fully settled by a series of judgments. The person, who is dismissed from service, cannot be held entitled to pension. The view taken by the Ist Appellate Court is, thus, legally not sustainable. That part of the judgment, whereby the respondent-plaintiff was held entitled to the pension or pensionary benefits is set-aside. Other part of the judgment upholding the order of dismissal, however, is upheld. 6. The Regular Second Appeal is allowed in the above terms. Decree-sheet be accordingly prepared by the Registry of this court.