Punjab-Haryana High Court
Punjab State Warehousing Corpn vs Baldev Singh & Ors on 17 March, 2022
LPA Nos. 65 and 66 of 2014 (O & M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
LPA Nos. 65 and 66 of 2014 (O & M)
Date of Decision: 17.03.2022
Punjab State Warehousing Corporation ...........Appellant(s)
vs.
Baldev Singh and others ..........Respondent(s)
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
HON'BLE MR. JUSTICE VIKAS SURI
Present:- Mr. K.B. Raheja, Advocate,
for the appellant.
Mr. R. Kartikeya, Advocate,
for respondent Nos.6, 10, 11, 12, 14, 17 to 27, 37, 39 to 47
(in LPA No. 65 of 2014).
Ms. Jagdeep Bains, Advocate,
for respondent Nos.3, 4, 7, 8, 12, 16, 30, 34, 35 and 44
(in LPA No. 66 of 2014).
(Proceedings are being conducted through video conferencing,
as per instructions).
G.S. SANDHAWALIA, J. (Oral)
The present judgment shall dispose of two appeals i.e. LPA Nos.
65 and 66 of 2014 as common questions of facts and law are involved in both
the appeals. The present appeal is directed against the judgment of the learned
Single Judge passed in CWP No. 20795 of 2011, Ashok Kumar and others vs.
State of Punjab and another, decided on 15.10.2012 and CWP No. 1750 of
2012 decided on the same date. Reference is being made to the facts of LPA
No. 65 of 2014, Punjab State Warehousing Corporation vs. Baldev Singh
and others arising out of CWP No.1750 of 2012.
The writ petitions were filed against the Corporation for issuance
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of directions to release full pension to the writ petitioners whereby, since only
67% of the pension had been released as provisional pension alongwith interest
on the arrears. The claim of the petitioners was that having retired as such,
they were entitled for full pension. The office orders granting them the
provisional pension as such would go on to show that at the time of retirement
on various dates, 30.06.2009, 31.08.2011, 31.05.2010, 31.12.2008 and
31.07.2011, not a word was incorporated that there were any departmental
proceedings pending against the employees. One such order reads thus:-
"Sh. Baldev Singh, TA (Retd), State Warehouse
Fazilka has retired on 30.06.2009 from the Corporation
after attaining the age of 58 years is being granted Rs.
4668/-(including 50% D.P. and 5% I.R) as monthly
provisional pension 2/3 share of the basic pension of Rs.
7033/- w.e.f. 01.07.2009."
A perusal of the noting of the corporation dated 21.06.2011 would
go on to show that on account of the legal opinion taken from its counsel Sh.
Narinder Pal, it was opined that the demand for the payment of the pension was
genuine and solely on account of anticipation of the liability of the delinquent
retiree being fixed in the disciplinary/judicial proceedings, the same could not
be withheld. Reference was made to the judgment of the Full Bench of this
Court in Dr. Ishar Singh vs. State of Punjab, 1994 (3) RSJ 543. The relevant
opinion reads thus:-
"It is now well settled that Rule 9.14 of the Punjab
CSR Vol. II which is mandatory statutory provision a
delinquent retiree against whom departmental/judicial
proceedings are pending is entitled to the grant of 100%
provisional pension. As such Corporation cannot escape its
liability to pay pension solely in anticipation of the liability
of the delinquent retiree being fixed in the
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disciplinary/judicial proceedings.
Reference may be made to the judgment of the Full bench of
the Hon'ble Punjab and Haryana High Court in the case Dr.
Ishar Singh V/s State of Punjab reported as 1994 (3) RSJ
543. This judgment has been subsequently followed in
various pronouncements. Therefore, in my opinion the
demand raised by the Association is a legally genuine and
there is implicit obligation on the part of the corporation to
grant same relief to similar situated persons whose claims is
based upon identical facts and points of law. Such action
would avoid unnecessary litigation............"
As regards, the payment of arrears of pension, for that the
Association may be persuaded not to press for the same for
the time being as the Corporation is facing financial
constrains."
In the writ petition, in the short reply which was filed by Col. V.K.
Joshi, Manager (Establishment) of the Corporation, the stance was that the
financial condition of the Corporation was poor and accordingly, affidavit
dated 02.05.2012 was filed which reads thus:-
"I, the above named deponent do hereby solemnly
state and affirm as under:-
1. That the petitioners have filed the instant writ petition to
release the full permissible pension as provisional pension
w.e.f. the dates of retirement of the petitioners as per their
entitlements under the rules alongwith arrears and interest.
2. That the answering respondent is ready to release 100%
provisional pension to the petitioners after the decision of
the Board of Directors, So far as arrears are concerned, it
would be paid to the petitioners on the improvement of
financial condition of Punjab State Warehousing
Corporation.
3. That the answering respondent is ready to submit
detailed reply, if required by this Hon'ble Court.
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DEPONENT
Place: Chandigarh
Dated: 02.05.2012"
In pursuance of the said untenable defence and since nothing had
been brought to the notice of the Learned Single Judge that there were any
proceedings pending, the learned Single Judge as such had allowed the writ
petition vide impugned order dated 15.10.2012 that on account of financial
crunch, the legitimate dues of the employees could not be withheld.
Thereafter, an application for review alongwith an application for
condonation of delay came to be filed wherein, the stance as such in the
application for condonation delay was that on account of the contempt
proceedings having been filed and the fact that the recovery was to be effected
from the petitioners it could not be inadvertently brought to the notice of this
Court. Thus, after detailed consultation with legal consultants, it was concluded
that the order was required to be reviewed. The relevant portion in the
averments made in the application for condonation of delay reads thus:-
"4. That the Managing Director of respondent-
corporation issued office order for release of 100%
provisional pension to the petitioners in compliance of order
dated 15.-10-2012 passed by this Hon'ble Court. It is
pertinent to mention here that at the time of filing of the writ
petition, respondent-corporation was recovering huge
amount from various petitioners but inadvertently the said
fact could not be brought to the notice of this Hon'ble Court
by respondent-corporation. However, one of the petitioners
against whom respondent-corporation was recovering huge
amount on account of his lapse, filed contempt petition
before this Hon'ble Court. The said fact came to the notice
of respondent-corporation when respondent-corporation
received summons in the contempt petition filed by one of the
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petitioners on 17-7-2013. Thereafter the respondent-
corporation after detailed consultation with its legal
consultants, came to the conclusion that order dated 15-10-
2012 is required to be reviewed. Hence the delay of 303 days
occurred in filing the present review application.
5. That the detail of 303 days in filing the review
application has been occurred, was neither intentional nor
deliberate but due to the circumstances mentioned above."
In the review application as such, reference was made that
petitioner No.2 namely Davinder Singh was facing a show cause notice dated
27.07.2004 regarding the departmental inquiry and the decision had been kept
pending. The final order as such of recovery was stated to be passed only on
20.03.2012. It is pertinent to notice that as per Annexure P-5 (Colly.),
Davinder Singh had retired on 31.08.2011 and as is apparent from the
certificate dated 28.11.2011 [Annexure P-5 (Colly.)] when he was to retire
there was no mention as such that there were any departmental proceedings
pending against him. The same also reads as under:
"Sh.Davinder Singh, ASTO District Office Moga, has
retired on 31.08.2011 from the Corporation after attaining
the age of 58 years is being granted Rs.9450/- as monthly
provisional pension 2/3 share of the basic pension of
Rs.14175/- w.e.f. 01.09.2011."
The explanation given in the review application was that these
facts could not be brought to the notice of this Court at the time of filing the
written statement. The application was supported by the affidavit of Sh. Raman
Vinayak, Manager (Establishment). Nothing was mentioned as to whether the
responsibility of the delinquent employee who had filed the affidavit was
sought to be fixed on account of giving wrong affidavit before this Court. The
impugned order had been passed on account of the untenable stance which had
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been taken that the amounts and dues could not be paid on account of financial
difficulties being faced by the Corporation and nothing was mentioned
regarding pendency of departmental proceedings.
It is not disputed that in pursuance of the order passed by the
learned Single Judge, directions were given to release full pension from
November, 2011 onwards as per the order of the Managing Director (Annexure
R-2). The said order reads as under:-
"In pursuance of the decision of Punjab and Haryana
High Court dated 15.10.2012 in the Civil Writ Petition No.
20795 of 2011 (O & M) titled Ashok Kumar and others
Versus State of Punjab & Others vide which it has been
ordered to release full pension to the petitioners from
November, 2011 onwards and the arrears on account of
difference in pensions be paid upto March 31, 2013, the
Corporation has decided to release the 100% provisional
pension to all the retired employees of the Corporation, who
have been allowed @ 67% provisional pension at the time of
their retirement.
CHANDIGARH, THE ARVINDER SINGH BAINS IAS
DATED: 11.12.2012 MANAGING DIRECTOR"
The review application was thereafter dismissed vide impugned
order dated 18.11.2013 of learned Single Judge on account of the fact that it
was belated by 303 days and rehearing of the petition was sought, which had
been decided on the basis of undisputed contentions raised and also on account
of the fact of delay.
It is a matter of record that the earlier appeals were dismissed on
account of delay only vide order dated 17.01.2014 since the appeals had also
been filed two months after the order passed in the review. The learned Apex
Court as such had remanded the matters in Civil Appeal Nos. 3073-3704 of
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2017 and Civil Appeal Nos. 3810 and 3811 of 2017 on 06.03.2017 on account
of the fact that the order of recoveries had been passed and, therefore, the same
having not been challenged, the case should be decided on merits. The
coordinate Bench on 17.01.2019 had directed as under:-
"Learned counsel for the appellant(s) prays for time to
file an affidavit giving the details of the persons (i) against
whom no recoveries are being effected, where the inquiries
have concluded: (ii) the persons against whom recoveries
are being effected; and (iii) the persons against whom the
inquiries are still pending and during the pendency of the
inquiry no recovery is being effected.
Adjourned to 11.02.2019.
Photocopy of this order be placed on the file of other
connected case."
In pursuance of the same, the necessary affidavit has been filed of
Mr. G.S. Dhillon, Chief Manager (Establishment) of the Corporation dated
07.02.2019. Even the said affidavit is evasive as not all the details have been
mentioned. The said affidavit reads thus:-
"3. That in compliance to the orders of this Hon'ble
Court, this affidavit is being filed along with the list giving
the details of the retired employees (i) against whom no
recoveries are being effected where the inquiries have
concluded (ii) the retired employees against who recoveries
are being effected and (iii) the retired employees against
who the inquiries are still pending and during the pendency
of the inquiry no recovery is being effected. The said list is
attached herewith the affidavit as Annexure-A.
4. It is pertinent to mention here that there are
some more cases, of unjustified storage loss in rice and less
storage gain in wheat, pending adjudication against the
respondents/retired employees and the said cases are lying
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with the Quality Control Branch of Appellant Corporation.
The details of the said cases will be provided later on if
directed by this Hon'ble Court."
A perusal of the table would go on to show that the retirements had
taken place almost three years earlier and all the recovery orders have been
passed thereafter though the show cause notices had been pending earlier. For
example, petitioner No.4 namely N.K. Abrol retired on 31.12.2008 and the
recovery order was passed only on 21.12.2011. The same is explained by way
of table as under:-
Sr. No. Name Date of Retirement Date of Recovery Date of Show
Cause Notice
1 Baldev Singh 30.06.2009 15.06.1988
2 Davinder Singh 31.08.2011 28.03.2012 19.02.2009
3 C.G. Dhawan 31.05.2010 07.01.1999
4 N.K. Abrol 31.12.2008 12.12.2011 12.02.2007
5 Randhir Singh 31.07.2011 27.02.2012
The said table would also go on to show that the show cause
notices were pending since 2007 and in some cases from 1988, 1999. A
perusal of the above would go on to show that disciplinary proceedings as such
were pending for decades against the employees and no effort was made to
complete the proceedings during the service tenure and in such circumstances,
in the above facts and circumstances, the fault lies wholly with the Corporation.
At the first instance, proper assistance was never given to this Court and the
defence given was that on account of financial exigencies, the amounts were
not paid. Even the retirement orders did not mention that there were any
departmental proceedings against them. Thirdly, the affidavit and Annexure A
now filed would show that the Corporation had not given all the information
asked for and withheld the details of the cases. It has sought directions from
this Court that the detail would be provided as directed by this Court in spite of
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the specific orders having been passed and only details of the writ petitioners
have been given. Another lack of clarity is that nothing has been brought on
record to show that any action was taken against the official who filed the short
affidavit, for not bringing the correct picture before this Court.
Keeping in view the cumulative conduct of the Corporation, we
are of the considered opinion that the appeals are bereft of merit as the
Corporation is totally at fault of mishandling this present set of litigation and
not bringing to the notice of this Court all the relevant material at earlier point
of time. Even today, it is not candid enough to place on record the action taken
against similarly situated employees.
Resultantly, the appeals are not liable to be entertained and being
without any merit, the same are dismissed. All pending applications, if any, are
also disposed of accordingly.
(G.S. SANDHAWALIA)
JUDGE
17.03.2022 (VIKAS SURI)
shivani/sailesh JUDGE
Whether reasoned/speaking Yes/No
Whether reportable Yes/No
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