Punjab-Haryana High Court
Jaspal Singh And Anr vs State Of Punjab And Ors on 27 January, 2023
CWP-24158 of 2021 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
223 CWP-24158 of 2021
Date of Decision:27.01.2023
Jaspal Singh and another
....Petitioner(s)
Versus
State of Punjab and others
.....Respondent(s)
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
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Present: Mr. Ranjivan Singh, Advocate,
for the petitioners.
Ms. Akshita Chauhan, DAG, Punjab.
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JASGURPREET SINGH PURI, J. (Oral)
The present writ has been filed under Articles 226/227 of the
Constitution of India seeking a writ in the nature of mandamus directing the
respondents to release the due pensionary/retiral benefits alongwith interest at
the rate of 18% per annum from the date of its accrual till its realization to the
petitioner by counting their daily wages service in view of the judgment passed
by this Court on 23.01.2013 (Annexure P-7).
Mr. Ranjivan Singh, learned counsel for the petitioners submitted
that it is a case where both the petitioners retired as drivers on 31.03.2020 from
the respondent Government. He submitted that earlier the department was
known as Irrigation Department whereas now the nomenclature of the same has
been changed to Department of Water Resources, Government of Punjab and in
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the year 2010 they were shifted and absorbed in the Department of General
Administration, Government of Punjab. He submitted that the petitioners
alongwith many others co-petitioners had filed a writ petition before this Court
bearing No.1432 of 2012 with a prayer that earlier they were appointed on
work charge basis but their services were thereafter regularized by the
department and therefore in view of the law laid down by this Court in
Harbans Lal versus The State of Punjab and others CWP-2371 of 2010,
decided on 31.08.2010) their services rendered during work charge period were
entitled to be counted for pensionary benefits and this Court allowed the
aforesaid petition and in this way the petitioners were entitled for counting of
their service rendered as work charge employees for the purpose of pensionary
benefits. He submitted that the effect of the same was that they were not to be
governed by the EPF/CPF scheme but now they will be governed by the old
pension scheme which was applicable even if they were regularized after
01.01.2004 in view of the aforesaid judgment. In pursuance of the aforesaid
judgment, the Department of General Administration vide Annexure P-8 passed
an order whereby a provisional approval was granted for counting the work
charge services rendered by both the petitioners and other petitioners as well
subject to decision to be rendered in SLP/review petition filed by the Irrigation
Department. Learned counsel further submitted that the aforesaid judgment has
rather attained finality and in this way the petitioners were entitled for getting
their earlier service on work charge basis to be counted for pensionary benefits
and in this way the aforesaid Annexure P-8 was passed on 08.08.2013 thereby
provisional approval was granted.
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Thereafter, both the petitioners retired on 31.03.2020 and it was
obligatory upon the respondent State to have implemented their own orders
which were passed vide Annexure P-8 in the year 2013 and to have calculated
the pension of the petitioners alongwith all the pensionary benefits in view of
the earlier judgment of this Court and consequent orders passed by the
Department of General Administration way back in the year 2013 which was
seven years ago. However, the respondent department failed to do the needful
and kept on delaying the matter for grant of pension and pensionary benefits to
the petitioners. However, so far as the leave encashment and GPF are
concerned, they were paid to the petitioners after a period of about 2½ months
for which the petitioners have not raised any dispute in the present writ
petition. However, the respondent department neither fixed the pension nor the
same was paid to the petitioners and in addition to that even DCRG was not
paid and the petitioners had applied for commutation of pension and that was
also not considered by the respondent department. He submitted that as an
eyewash the respondent department passed an order dated 24.06.2022
(Annexure R-1 and R-2) which have been attached alongwith the short reply
filed by the State with regard to both the petitioners in which it was stated that
in view of the judgment passed by this Court in the year 2013, the service
rendered on work charge basis in the Irrigation Department was sanctioned for
calculation of pension and other benefits. Learned counsel submitted that once
the benefit of grant of counting of earlier service for the purpose of pensionary
benefits has already been finalized in the year 2013 whereby the department
itself had issued an order Annexure P-8 in the year 2013, there was no need to
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have passed such an order once again and it was only for the purpose of cover
up operation that such an order was passed.
He further submitted that he has specifically so pleaded in
paragraph 24 of the petition that time and again the petitioners have expressed
their readiness and willingness to refund the employer's share of the EPF
alognwith interest but the respondent department has not even chosen to file
reply to the present petition and has chosen to file only a short reply and in this
way the averment made in paragraph 24 of the petition stands unanswered and
therefore deemed to have been admitted. He submitted that even for the sake of
arguments, the EPF pertaining to the employer's share was to be adjusted after
being deposited by the petitioners and the same was only to the extent of Rs.1.6
lakhs whereas the total pensionary benefits of the petitioners to the tune of
approximately Rs.25 lakhs is wrongfully retained by the respondent department
on the aforesaid reason and therefore the action of the respondent department is
totally arbitrary which has caused prejudice to the petitioners and their rights to
property under Article 300-A of the Constitution of India have been
jeopardized by the State. He submitted that during the pendency of the present
petition, all the retiral benefits including DCRG and arrears of pension etc.
have been paid to the petitioners in December 2022 and now the scope of the
present petition is restricted only to the grant of interest on the aforesaid
amounts.
Ms. Akshita Chauhan, learned DAG, Punjab has however
submitted that there is no dispute that the petitioners were entitled for counting
of service rendered on work charge basis for the purpose of pensionary benefits
especially in accordance with the judgment passed by this Court which has
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attained finality. She submitted that the delay has been caused only because the
orders Annexure R-1 and R-2 were passed in the month of June 2022 wherein
the benefit of counting of aforesaid service was ordered. She submitted that all
the benefits have now been granted to the petitioners and therefore the present
petition is liable to be dismissed. She further submitted that at the time of
retirement of the petitioners on 31.03.2020, they were required to deposit the
employer's share of EPF which they failed to do so and it also contributed
towards delay of payments. She further referred to Annexure P-10 which is an
office order dated 19.08.2009 whereby it is so provided that unless the
employees deposit the employer's share of EPF to the Government at the time
of retirement, they will not be entitled for their regular pension.
I have heard the learned counsel for the parties.
The petitioners have stated to have retired on 31.03.2020. The
petitioners alongwith other employees had earlier filed a writ petition before
this Court whereby they were granted the benefit of service rendered by them
during the period of work charge basis for the purpose of counting of pension
in the year 2013 which according to learned counsels for the parties had
attained finality. Thereafter, even Annexure P-8 dated 08.08.2013 was passed
by the Department of General Administration whereby provisional approval
was granted for counting of service rendered during the period of work charge
basis. At the time of retirement, the petitioners were entitled for fixation of
their pension and other pensionary benefits in view of the aforesaid counting of
service rendered during the period of work charge basis for the purpose of
pensionary benefits. An obligation was cast upon the concerned department to
fix the pension in this regard. However, as per the learned counsels for the
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State, the delay was caused because of the petitioners who did not deposit the
employer's share of EPF and that was the reason for the delay in granting the
pension and other pensionary benefits. So far as the leave encashment and
GPF is concerned, the same was granted within time limit and there is no
dispute raised by learned counsel for the petitioners in this regard. But so far as
DCRG and pension itself are concerned, the same were granted with a delay of
two years and eight months. A perusal of paragraph 24 of the writ petition
would show that the petitioners have specifically stated that the petitioners time
and again had expressed that they were ready and willing to refund the
employer's share of EPF alongwith interest. However, the State Government
has chosen not to file detailed reply in the present petition and has chosen to
file only a short reply and therefore the averment made in paragraph 24 of the
petition remains unanswered. Consequently, this Court draws an adverse
inference against the State of Punjab in this regard. Be that as it may, the total
amount as per the learned counsels for the parties pertaining to the employer's
share of EPF which according to learned State counsel was to be refunded by
the petitioners at the time of retirement was Rs.1.79 lacs for petitioner No.1
and Rs.1.6 lacs for petitioner No.2 but the State delayed the pension and the
DCRG of the petitioners for two years and eight months by withholding about
Rs.25 lacs. Such kind of delay is apparently due to the fault of the State
Government. At the most, the State Government may have withheld the
aforesaid amount of employer's share of EPF and disbursed the remaining
amount but the entire amount was withheld because of the aforesaid reason.
The reliance placed by learned Deputy Advocate General, Punjab on Annexure
P-10 dated 19.08.2009 that the pension can be withheld for non-deposit of
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employer's share of EPF is liable to be ignored since it does not carry legal
sanction being only an office order.
The right of the petitioners to get the pension and pensionary
benefits is a Constitutional right under Article 300-A of the Constitution of
India and a Constitutional right cannot be deprived of by passing of an office
order in such like manner. Therefore, the justification given by learned Deputy
Advocate General, Punjab on the basis of the aforesaid order and the fact that
the petitioners failed to deposit their employer's share of EPF deserves to be
rejected.
In view of the above, this Court is of the considered view that the
petitioners are entitled for the grant of interest @ 6% on the delayed payment
of DCRG and the arrears of pension/commutation of pensionary benefits with
effect from the date of its accrual till the date of disbursement. The aforesaid
payment shall be paid to the petitioners within a period of three months from
today.
The present petition stands partly allowed to the above extent.
(JASGURPREET SINGH PURI)
JUDGE
January 27, 2023
dinesh
Whether speaking : Yes/No
Whether reportable : Yes/No
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