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2014 DIGILAW 1018 (HP)

Sheela Devi v. HRTC

2014-08-01

P.S.RANA

body2014
ORDER Present Civil Writ Petition filed under Article 226 of the Constitution of India. Brief facts of the case as pleaded are that on 30.7.1982 the husband of petitioner late Sh Dayal Singh was engaged as driver in Himachal Road Transport Corporation (Hereinafter HRTC). It is further pleaded that thereafter on 27.3.1983 services of the husband of petitioner were regularized in HRTC as driver. It is further pleaded that on 18.12.1992 husband of petitioner was charge-sheeted for misconduct and negligence of performance of duty. It is further pleaded that on 5.9.1998 penalty of compulsory retirement was imposed upon husband of petitioner. It is further pleaded that thereafter husband of the petitioner filed OA No. 2571 of 1999 titled Dayal Singh Vs. HRTC before State Administrative Tribunal. It is further pleaded that after abolition of Administrative Tribunal OA was transferred to Hon’ble High Court of HP and the same was registered as CWP(T) No. 6054 of 2008. It is further pleaded that during the pendency of civil writ petition the husband of petitioner died on dated 26.12.2009. It is further pleaded that petitioner was also arrayed as party in writ petition after the death of her husband. It is further pleaded that writ petition was disposed of by Hon’ble High Court of HP on dated 23.4.2010. It is further pleaded that order of compulsory retirement of the husband of petitioner was quashed in writ petition and it was directed that appeal be heard afresh after passing a speaking order. It is further pleaded that vide order dated 17.7.2010 appeal filed by the husband of petitioner was rejected. It is further pleaded that after compulsory retirement of the husband of petitioner the amount of pension, gratuity, leave encashment and GPF have not been released till date. It is further pleaded that appellate authority has again not applied its mind and petitioner was not afforded any opportunity to lead his defence witness. It is further pleaded that there was inordinate delay in conclusion of the inquiry by the Inquiry Officer which has prejudiced the case of the husband of petitioner. It is further pleaded that no medical examination of deceased husband was conducted in order to prove that deceased husband of the petitioner had driven vehicle under the influence of liquor. It is further pleaded that the testimony of the then conductor of bus was not trust worthy and did not inspire confidence. It is further pleaded that no medical examination of deceased husband was conducted in order to prove that deceased husband of the petitioner had driven vehicle under the influence of liquor. It is further pleaded that the testimony of the then conductor of bus was not trust worthy and did not inspire confidence. It is further pleaded that even after the penalty of compulsory retirement the husband of petitioner was legally entitled for pension, gratuity, leave encashment and GPF amount. It is further pleaded that no amount of family pension has been paid to the petitioner after the death of her husband on 26.12.2009. It is further pleaded that order dated 17.07.2010 passed by disciplinary authority be held illegal. It is further pleaded that husband of petitioner be held to be in service till the date of his death i.e. 26.12.2009 with all consequential benefits. It is further pleaded that all benefits i.e. pension, gratuity, leave encashment and GPF amount be ordered to be released to petitioner along with interest @ 12% per annum. It is further pleaded that respondents be directed to release family pension to the petitioner as admissible after the date of death of her husband and arrears of family pension be ordered to be released along with interest @ 12% per annum. Prayer for acceptance of writ petition sought. 2. Per contra reply filed on behalf of the respondents pleaded therein that the husband of petitioner was regularized w.e.f. 27.3.1983 as driver as per record of HRTC. It is further pleaded that the work and conduct of late Sh Dayal Singh was not found up to the mark and he was compulsory retired from service. It is further pleaded that after the direction of Hon’ble High Court of HP in CWP(T) No. 6054 of 2008 the appeal was again heard by the appellate authority. It is further pleaded that petitioner was heard in person and appellate authority found no cogent reason to interfere with order dated 5.9.1998. It is further pleaded that husband of the petitioner was paid terminal gratuity amounting to Rs.15,000/- (Rs. Fifteen thousand) vide cheque No. 1039949 dated 30.11.1999 and leave encashment for 189 days amounting to Rs.36,162/- (Thirty six thousand one hundred sixty two) vide cheque No. 1039344 dated 29.9.1999. It is further pleaded that husband of the petitioner was paid terminal gratuity amounting to Rs.15,000/- (Rs. Fifteen thousand) vide cheque No. 1039949 dated 30.11.1999 and leave encashment for 189 days amounting to Rs.36,162/- (Thirty six thousand one hundred sixty two) vide cheque No. 1039344 dated 29.9.1999. It is further pleaded that the husband of petitioner was paid GPF amounting to Rs.46,782/- (Forty six thousand seven hundred eighty two) vide cheque No. 977773 dated 21.10.1999. It is further pleaded that since the husband of petitioner during his service was not confirmed therefore he was not entitled for any pension and he was only entitled for terminal gratuity which stood already paid to the husband of petitioner. It is further pleaded that there was no medical report qua consumption of liquor by the husband of petitioner but he was seen consuming liquor by eye witness Sh Dharmender Kumar the then conductor of the bus. It is further pleaded that the husband of petitioner was paid terminal gratuity, leave encashment and GPF in the year 1999 itself. It is further pleaded that husband of the petitioner was not legally entitled for pension. Prayer for dismissal of writ petition sought. 3. Court heard learned Advocate appearing on behalf of the parties and also perused entire records carefully. 4. Following points arise for determination in the present writ petition: (1) Whether impugned order dated 17.7.2010 is liable to be set aside as alleged and whether husband of petitioner should be held to be in service till date of his death i.e. 26.12.2009 with all consequential benefits ? (2) Whether petitioner is legally entitled for family pension being widow of deceased Dayal Singh.? Finding upon Point No.1. 5. Court has carefully perused the order Annexure:P6 placed on record. Managing Director HRTC Shimla has passed fresh order on dated 17.7.2010 in compliance to direction issued by Hon’ble High Court of HP in CWP(T) 6054 of 2008 titled Sheela Devi Vs. HRTC and others. It is proved on record that Sh Dayal Singh died during the pendency of CWP(T) No. 6054 of 2008 titled Sheela Devi Vs. HRTC and others. It is proved on record that petitioner Sheela Devi is not in service of HRTC. It is proved on record that Managing Director of HRTC has perused relevant record pertaining to the present case. It is proved on record that Sh Dayal Singh died during the pendency of CWP(T) No. 6054 of 2008 titled Sheela Devi Vs. HRTC and others. It is proved on record that petitioner Sheela Devi is not in service of HRTC. It is proved on record that Managing Director of HRTC has perused relevant record pertaining to the present case. It is also proved on record that proper inquiry was conducted and charge against the delinquent official stood proved. It is also proved on record that copy of inquiry report was supplied to delinquent official and penalty of compulsory retirement from service was imposed vide order No. 9250 dated 5.9.1998. Even Smt. Sheela Devi widow of Sh. Dayal Singh Ex-driver was heard in person on dated 14.6.2010. Hence it is held that it is not expedient in the ends of justice to set aside compulsory retirement order dated 17.07.2010 qua deceased Sh Dayal Singh Ex-driver posted in HRTC. Finding upon Point No.2. 6. Submission of learned Advocate appearing on behalf of the petitioner that petitioner is entitled for pension/family pension is accepted for the reason hereinafter mentioned. It is well settled law that following classes of employees are entitled for pension (i) Superannuation employee. (ii) Voluntary or pre-mature retired employee before superannuation. (iii) Compulsory retirement employee. (iv) Employee retired on medical ground. (v) Employee on conversion of government department (vi) Employee whose department is absorbed by another department. It is well settled law that government employee who is removed or dismissed from service is not entitled for any pension benefit and he forfeit his past service. It is well settled law that compulsory retired employee is entitled for pension benefits and other benefits. It is well settled law that penalty of removal from service is no disqualification for future employment. It is well settled law that employee dismissed from service is disqualified for re-employment in future. In view of the fact that penalty of compulsory retirement was imposed upon Sh Dayal Singh Ex-driver on dated 5.9.1998 and again affirmed on dated 17.7.2010 and in view of the fact that compulsory retired employee is entitled for pension benefits and in view of the fact that widow of deceased employee is entitled for pension benefit/family pension in accordance with law it is held that petitioner is also entitled for pension/family pension benefits after the death of deceased Dayal Singh Ex-driver of HRTC. 7. Submission of learned Advocate appearing on behalf of the respondents that petitioner is not entitled for pension because Sh Dayal Singh Ex-driver was not confirmed during his service is rejected being devoid of any force for the reason hereinafter mentioned. It is proved on record that Sh Dayal Singh was employed as driver in HRTC on 30.7.1982. It is also proved on record that his service was regularized on 27.3.1983. It is also proved on record that compulsory retirement penalty was imposed upon Sh Dayal Singh on 5.9.1998. In the present case the probation period of Sh Dayal Singh was not extended and it is well settled law that probation period could not be extended beyond three years. Even as per pension rule employee in public sector is entitled for pension benefits after completion of qualifying service of ten years. Sh Dayal Singh had completed his qualifying service of ten years on 30.7.1992 and when deceased Dayal Singh completed qualifying ten years service he was not charge sheeted by competent authority of law. It is held that after serving ten years of qualifying service Sh Dayal Singh was legally entitled for pension benefits. It is held that after the death of Sh Dayal Singh his widow Smt. Sheela Devi is also entitled for pension/family pension benefits. 8. In view of the above findings it is held (i) That order of Managing Director HRTC Shimla dated 17.7.2010 did not warrant any interference and same is up-held. (ii) It is held that as Sh Dayal Singh was compulsory retired from service as driver w.e.f. 5.9.1998 he was legally entitled for all pension benefits till his death and it is held that after the death of Sh Dayal Singh petitioner Smt. Sheela Devi widow of Sh Dayal Singh is legally entitled for pension/family pension benefits in accordance with pension rules as applicable to widow of compulsory retired employee and as per Employee Pension Scheme along with upto date interest as permissible under law. (iii) Other relief(s) claimed by petitioner declined and it is held that all other relief(s) merged in point No.1 and 2 determined by the Court. Writ petition is accordingly disposed of with no order as to costs. All miscellaneous application(s) are also disposed of.