Date Of Decision: 10.10.2023 vs Sh. Sunder Ram
2023 Latest Caselaw 15838 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 1797 of 2017

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Reserved on: 18.09.2023

Date of Decision: 10.10.2023 _______________________________________________________ State of H.P. and others .....Petitioners.

Vs.

Sh. Sunder Ram                                                                 .....Respondent.





Coram:

The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice The Hon'ble Mr. Justice Ajay Mohan Goel, Judge

Whether approved for reporting?1

For the petitioners: Mr. Anup Rattan, Advocate General, with M/s Rakesh Dhulta and Pranay Pratap Singh, Additional Advocate Generals and M/s Arsh

Rattan and Sidharth Jalta, Deputy Advocate Generals.

For the respondent: Mr. J.L. Bhardwaj, Senior Advocate, with Mr.

Sanjay Bhardwaj, Advocate.

Ajay Mohan Goel, Judge:

This writ petition has been preferred by the State against order

dated 17.05.2016, passed by the learned erstwhile Himachal Pradesh State

Administrative Tribunal in T.A. No. 1957 of 2015, titled as Shri Sunder Ram

Vs. State of Himachal Pradesh and others, in terms whereof, the Transfer

Application of the applicant was allowed by the learned Tribunal.

1 Whether the reporters of the local papers may be allowed to see the judgment?

2. Brief facts necessary for the adjudication of the present petition

are that respondent/applicant (hereinafter referred to as 'the applicant') filed

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a writ petition, i.e., CWP No. 7996 of 2013 in this Court, inter alia, praying for

the following relief:-

"(i) That the writ in the nature of mandamus may kindly be issued directing the respondents to release the withhold benefits i.e. remaining amount of Leave

Encashment i.e. Rs.13,083/-, Gratuity and commuted pension alongwith entire arrears as well as to pay the interest

@ 12% per annum w.e.f. 01.04.2009 till its realization,

besides directing the respondents to pay the interest @ 12% per annum on the amount already paid to the petitioner i.e., GPF and part payment of leave encashment from 01.04.2009

till its actual payment made to the petitioner for which the petitioner humbly prays."

After re-establishment of the Himachal Pradesh Administrative Tribunal, the

same was transferred thereto and registered as Transfer Application No.

1957 of 2015.

3. The case of the applicant before the learned Tribunal was that

he was appointed as a Beldar on daily wage basis on 21.12.1988 and his

services were regularized as such vide office order dated 23.07.1999 w.e.f.

01.04.1998.

4. On account of some unavoidable domestic circumstances, as

he was unable to continue as a Helper, he gave a notice to the Department

seeking voluntary retirement.

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5. After the service of said notice, petitioner No. 3 vide office order

dated 31.03.2009 (Annexure P-2), retired the applicant from service with

immediate effect. It was further his case that while he was in service, a

complaint was filed against him that he had submitted a false date of birth

certificate to the Department. All these facts were in the notice of the

Department when the applicant was retired from service vide Annexure P-2.

6. His grievance was that after his retirement, his retiral benefits

which were due as on 31.03.2009, were wrongfully retained by the

Department. Therefore, he filed a case for issuance of direction to the

Department to release his withheld retiral benefits.

7. The stand of the Department before the learned Tribunal was

that one Shri Hari Krishan filed a complaint against the applicant that he had

submitted a false date of birth certificate mentioning his date of birth as

27.11.1952, whereas, his actual date of birth was 14.07.1946.

8. On the basis of said complaint, inquiry was conducted by the

Assistant Engineer, IPH Sub-Divison, Ramshehar and the allegation made

against the applicant was found to be correct. To avoid the penalty of

dismissal from Government service, the applicant sought voluntary

retirement and his request for the same was considered by the Disciplinary

and Appointing Authority sympathetically and the applicant was accordingly

retired vide office order dated 31.03.2009.

9. As per the Department, said order of retirement of the applicant

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was subsequently withdrawn/cancelled vide office order dated 23.06.2011

(appended with the reply filed to the T.A. as Annexure R-IV) and as the

applicant could not have served the Department after attaining the age of

superannuation, which he attained on 31.07.2006, therefore, vide office

order dated 23.06.2011, he was ordered to have been retired from

Government service w.e.f. 31.07.2006 on attaining the age of

superannuation by taking his date of birth as 14.07.1946.

10. It was further the stand of the Department that as on the date of

his superannuation, i.e., 31.07.2006, as the applicant had not put in 10 years'

regular service, therefore, he was not entitled for any pension, but was found

entitled only for terminal gratuity and the competent authority was called

upon to take necessary action and release the admissible benefits to the

applicant as per the Rules. On these basis, the prayer of the applicant was

resisted by the Department before the erstwhile Tribunal.

11. Learned Tribunal, vide impugned order dated 17.05.2016

allowed the Transfer Application of the applicant in the following terms:-

"6. In view of the above, the transferred application is allowed and the respondents are directed to release withheld amount of leave encashment, gratuity and pension, with interest at the rate of 9% per annum,

from the date of voluntary retirement till payment except the gratuity on which the interest shall be payable after three months of the retirement."

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While granting this relief to the applicant, learned Tribunal observed that the

Department had accepted the notice of voluntary retirement of the applicant

with the knowledge that there was a complaint pending against him about

false date of birth certificate, yet it took a conscious decision to allow the

applicant to voluntarily retire from service. It further held that as appointing

authority issued order of deemed retirement of the applicant without holding

an inquiry and affording opportunity of being heard to the applicant,

therefore, office order dated 17.08.2009 (Annexure P-4 with the Transfer

Application) regarding cancellation of leave encashment of the applicant was

bad in law. Learned Tribunal also held that as the applicant had completed

10 years' service, therefore, he could not be denied the benefit of gratuity

and pension.

12. Feeling aggrieved, the State has filed the present writ petition

against the order of erstwhile Tribunal.

13. Learned Advocate General has argued that the order passed by

the erstwhile Tribunal is not sustainable in the eyes of law as learned

Tribunal erred in not appreciating that the act of seeking voluntary retirement

of the applicant was with the intent to evade the disciplinary proceeding qua

the complaint against him of having furnished a false date of birth certificate

to the Department. He further argued that as it stood proved on record that

the actual date of birth of the applicant was 14.07.1946, and as it was a

matter of record that the applicant himself had given an undertaking to the

petitioners on 23.06.2011 after the decision of an earlier writ petition filed by

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the applicant, i.e., CWP No. 7545 of 2010 that he may be retired from service

w.e.f. 31.07.2006 as his date of birth was 14.07.1946, therefore, the order

passed by the learned Tribunal was ex facie bad in law as it erred in not

appreciating that the applicant himself had accepted his date of birth to be

14.07.1946.

14. Learned Advocate General also argued that otherwise also the

applicant could not have been given benefit of service rendered by him after

attaining the age of superannuation because said service was non est in the

eyes of law, as the applicant continued to serve the Department on the basis

of a false date of birth certificate submitted by him.

15. Learned Advocate General also submitted that as from the date

of his regularization, as the applicant had not completed 10 years of service

as on 31.07.2006, therefore, he was not entitled for the grant of pension also.

16. He further argued that there was material concealment of facts

by the applicant from the Court as he never disclosed to the Court in the

Transfer Application filed by him that the order of his retirement dated

31.03.2009 was withdrawn and modified vide office order dated 23.06.2011,

which had attained finality as it was never assailed by the applicant. He

submitted that despite the entire material being available on record, learned

Tribunal erred in neither referring to it nor appreciating it and therefore also,

impugned order was not sustainable in the eyes of law. Accordingly, he

prayed that the order passed by the learned Tribunal be set aside.

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17. Defending the order passed by the learned Tribunal learned

Senior Counsel for the respondent/applicant argued that as the applicant

was retired vide Annexure P-2 w.e.f. 31.03.2009 by the Department,

therefore, the Department had no locus to deny the pension and other retiral

benefits to the applicant as from 31.03.2009. He further argued that as the

applicant had worked up to the said date, therefore, he was legally entitled

to retiral benefits which were accruable to him as from the said date of his

retirement. Learned Senior Counsel referred to the judgment of the Hon'ble

Supreme Court in Shankar Lal Vs. Hindustan Copper Limited and others

(2022) 6 Supreme Court Cases 211 and pleaded that in the light of the law

laid down by the Hon'ble Supreme Court in this judgment, there was no merit

in the petition and the same deserved dismissal. No other point was urged.

18. Having carefully heard learned Advocate General as well as

learned Senior Counsel for the respondent and having carefully gone

through the order passed by the learned Tribunal as well as the record of

Transfer Application, we are of the considered view that the order passed by

the erstwhile Tribunal is not sustainable in law.

19. Learned Tribunal granted relief to the applicant on the premise

that the applicant was voluntarily retired by the Department vide Annexure

P-2 w.e.f. 31.03.2009 being fully aware of the complaint having been filed

against the him qua a false date of birth certificate submitted by him to the

Department, and as it took a conscious decision to retire the applicant from

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the said date without going into the merit of the complaint, therefore, the

applicant was entitled for pensionary benefits as well as other post retiral

benefits w.e.f. 31.03.2009.

20. However, while returning these findings, learned Tribunal erred

in not appreciating the stand of the Department in its reply to the Transfer

Application, wherein, it was specifically mentioned and demonstrated by way

of Annexures appended with the reply that order dated 31.03.2009

(Annexure P-2) was withdrawn/cancelled vide office order dated 23.06.2011

and the applicant was ordered to have been retired from service w.e.f.

31.07.2006 on attaining the age of superannuation, his date of birth being

14.07.1946.

21. Not only this, learned Tribunal also erred in not appreciating that

the Department had appended with the reply an undertaking given by the

applicant dated 23.06.2011 to the effect that his date of birth was 14.07.1946,

on the basis of which, he should be superannuated from service w.e.f.

31.07.2006 and whatever benefits were accruable to him as on 31.07.2006

be released in his favour.

22. Non-appreciating of these facts by the learned Tribunal

demonstrates that the impugned order has been passed by the erstwhile

Tribunal without any due application of mind and by ignoring the pleadings

of the Department in totality.

23. We also find merit in the contention of learned Advocate

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General that applicant had approached the Court by way of Transfer

Application by concealing material facts, as he had not mentioned in the

Transfer Application that the order of retirement dated 31.03.2009 (Annexure

P-2) stood modified vide order dated 23.06.2011 (Annexure R-IV), copy

whereof was in fact forwarded to the applicant and he had also given an

undertaking to the Department that his date of birth indeed was 14.07.1946

and requested that he may be retired from service w.e.f. 31.07.2006 and his

post retiral benefits which were payable to him be released w.e.f.

31.07.2006. Incidentally, there is no rebuttal to all these facts in the rejoinder

filed by the applicant to the reply of the Department in the proceedings and

all that the applicant stated in the rejoinder was that the application etc. was

obtained from the applicant by the Department by mis-representing the facts

etc.

24. Shankar Lal (supra) relied upon by learned Senior Counsel for

the applicant is also of no assistance, because therein the employee had

challenged the act of the employer of unilaterally correcting the age of entry

of the employee in the service book, on their perception that an error was

being corrected, which act of the employer was held to be bad by the Hon'ble

Supreme Court on the ground that the exercise was conducted without giving

an opportunity of hearing to the employee and at the fag end of his service

tenure.

25. Be that as it may, fact of the matter still remains that the

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applicant did not approach the Court with clean hands and he concealed the

material facts from the Court. Further, learned Tribunal completely ignored

the reply of the Department as well as the documents appended therewith,

which clearly demonstrated that the order of retirement of the applicant stood

withdrawn/modified and the applicant had given an undertaking that post

retiral benefits be released to him by taking his date of birth to be 14.07.1946

and by treating him to have retired from service w.e.f. 31.07.2006.

26. In these circumstances, we find that order dated 17.05.2016,

passed by the erstwhile Tribunal in T.A. No. 1957 of 2025, in terms whereof,

the petitioners were directed to grant pensionary benefits to the applicant,

taking his date of retirement as 31.03.2009 is bad in law and the same is

accordingly set aside, with the observation that the respondent herein shall

be only entitled to those retiral benefits which accrued to him by construing

his date of retirement to be 31.07.2006. Petition stands disposed of in above

terms, so also pending miscellaneous applications, if any.

(M.S. Ramachandra Rao) Chief Justice

(Ajay Mohan Goel) Judge October 10, 2023 (bhupender)