Punjab-Haryana High Court
Harish Chander vs State Of Haryana And Ors on 12 April, 2023
Neutral Citation No:=2023:PHHC:050634
RSA-2530-2018 2023:PHHC:050634 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(244) RSA-2530-2018
Date of Decision : April 12, 2023
Harish Chander .. Appellant
Versus
State of Haryana and others .. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. K.S. Banyana, Advocate, for the appellant.
Ms. Vibha Tewari, Assistant Advocate General, Haryana.
HARSIMRAN SINGH SETHI J. (ORAL)
In the present Regular Second Appeal, the challenge is to the
judgment and decree of the trial Court dated 05.04.2004 by which, the suit
of the appellant-plaintiff was allowed to the effect that the order dated
19.11.2008, compulsory retiring the appellant-plaintiff was held to be bad
but no service benefits for the period the appellant-plaintiff remained out of
service till the date of his retirement was extended to him and the order
passed by the lower Appellate Court dated 27.11.2017 by which the
judgment and decree of the trial Court was upheld.
Certain facts needs to be mentioned for the correct appreciation
of the issue in hand.
While the appellant-plaintiff was working as Assistant Sub
Inspector in the year 2007, adverse remarks were conveyed to the appellant
from the period 17.06.2007 to 02.08.2007, which period was less than three
months. Thereafter, on an appeal filed by the appellant-plaintiff, the
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Inspector General of Police vide order dated 06.01.2008 expunged the said
adverse remarks.
On 19.11.2008, on attaining the age of 55 years, the appellant-
plaintiff was given three months' notice for pre-maturely retiring him.
Keeping in view the said notice, on expiry of the said three months, the
appellant-plaintiff was compulsorily retired from service on attaining the
age of 55 years.
The said show cause notice dated 19.11.2008 for compulsory
retirement was challenged by the appellant by filing a civil suit, which civil
suit was allowed by the trial Court on 05.04.2014 and the notice dated
19.11.2008, in pursuance to which the appellant-plaintiff was pre-maturely
retired, was held to be bad and was set aside. While setting aside the pre-
mature retirement of the appellant-plaintiff, it was mentioned that the
appellant-plaintiff will be treated to have retired on attaining the age of 58
years and will be entitled for fixation of pay as well as retiral benefits along
with arrears of pension along with interest @ 6% per annum.
Feeling aggrieved against the decision of the trial Court in non-
granting the benefit of arrears of salary for the period the appellant-plaintiff
remained out of the service from the year 2008 till February 2012, the
appellant-plaintiff preferred an appeal. In the appeal, no benefit has been
extended by the lower Appellate Court and the judgment of the trial Court
dated 05.04.2004 has been upheld. Hence, the present Regular Second
Appeal.
Learned counsel for the appellant argues that once the order
dated 19.11.2008 in pursuance to which the appellant-plaintiff was pre-
maturely retired, has been set aside, the appellant-plaintiff will be deemed
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to be in service for all intents and purposes and therefore, non-grant of
service benefit for the period the appellant-plaintiff remained out of service
due to an illegal act on the part of the respondent-State, is without any valid
justification, hence, the judgment of the trial Court, which has been upheld
by the lower Appellate Court needs to be modified for the grant of service
benefits including the salary, increments and fixation of his salary
accordingly.
Learned counsel for the respondents-State submits that once a
relief though claimed in the suit has been declined by the trial Court, the
same is perfectly valid as the pay of the appellant has already been fixed
notionally upto the date of retirement and even the arrears of enhanced
pension has already been extended to him along with interest, hence the
present appeal may kindly be dismissed.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
It may be noticed that the respondent-State had accepted the
judgment of the trial Court by which the order dated 19.11.2008 pre-
maturely retiring the appellant-plaintiff has been set aside. That being so,
the question arises whether once in lieu of a particular order, on the basis, of
which the appellant-plaintiff was not allowed to perform the duties from the
year 2008 onwards till February 2012 has been set side, can he be denied
the benefit of arrears of pay for the said period.
In the present case, nothing has come in the judgment of the
trial Court as to why the arrears for the period the appellant-plaintiff
remained out of service, has been denied to him. Though, it is a settled
principle of law that the arrears can be denied but the same can only be done
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for a justifiable cause/reason.
In the present case, no reason has come forward as to why the
appellant-plaintiff should not be given the service benefits for the period he
was not allowed to discharge the duties due to the order dated 19.11.2008,
which has already been declared illegal by the competent Court of law and
has been set aside. It is the respondent-State which prevented the appellant-
plaintiff to discharge the duties of the post by passing an illegal order,
which order has already been set aside. Once due to arbitrary action of the
State, appellant-plaintiff could not perform duties, upon setting aside the
order dated 19.11.2008, it is the duty of the Court to ensure that no
prejudice is suffered by the appellant-plaintiff on account of the said illegal
order. If arrears of salary are denied despite setting aside the order dated
19.11.2008, appellant-plaintiff will suffer prejudice, which needs to be
compensated by respondent-State which restrained the appellant-plaintiff
from discharging the duties.
Even during the arguments, nothing has been brought to the
notice of this Court, which would prevent the Courts from passing an order
granting him the service benefits for the period the appellant-plaintiff
remained out of service due to passing of an arbitrary and illegal order dated
19.11.2008.
Keeping in view the above facts, the denial of the service
benefits by the trial Court for the period the appellant-plaintiff remained out
of service in pursuance to the order dated 19.11.2008, upto the date of the
retirement is modified. The appellant-plaintiff is held entitled for the
service benefits including salary for the period he remained out of service
by deeming fiction that he was continuing in service. The appellant-plaintiff
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will also be entitled for the increments for the period he remained out of
service.
At this stage, learned counsel for the appellant submits that the
notional benefits have already been granted to the said effect but actual
benefits have not been allowed.
Keeping in view the said fact, the appellant-plaintiff is not
entitled for notional benefits but is entitled for actual benefits for the period
he remained out of service along with arrears.
Learned counsel for the appellant-plaintiff submits that keeping
in view the instructions given by the appellant, who himself is present in
Court, he will not claim interest on the arrears of the salary. That being so,
the order passed by the Courts below is modified to the extent that the
appellant-plaintiff will be entitled for all the service benefits for the period
he remained out of service upto the date of his retirement including
increments.
Let the arrears for which the appellant-plaintiff become entitled
for under this order, be calculated within a period of three months and be
released to him thereafter after fixing his salary.
The present Regular Second Appeal is allowed in above terms.
April 12, 2023 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes
Whether reportable : No
Neutral Citation No:=2023:PHHC:050634
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