Punjab-Haryana High Court
Raj Pal Singh vs Municipal Corporation Faridabad on 4 May, 2023
Neutral Citation No:=2023:PHHC:064969
CWP No.31935 of 2019(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on 28.03.2023
CWP No.31935 of 2019(O&M)
Date of Decision: 04.05.2023
Raj Pal Singh
......Petitioner
Vs
Municipal Corporation, Faridabad
.....Respondent
CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present:Ms. Abha Rathore, Advocate
for the petitioner
Ms. Suman Rani, Advocate for
Mr. Hitesh Pandit, Advocate
for the respondent.
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RAJ MOHAN SINGH, J.
[1]. The petitioner has preferred this writ petition under
Article 226/227 of the Constitution of India for the issuance of an
appropriate writ in the nature of mandamus, directing the
respondents to pay retiral benefits to the petitioner in terms of
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pension, leave encashment, gratuity, G.P.F, deputation
allowances, technical scale with arrears along with the interest.
[2]. Learned counsel for the petitioner submitted that the
petitioner was appointed as tubewell-helper/driver on daily
wages on 30.08.1991. His services were terminated on
20.04.2001. The petitioner along with others filed CWP No.6142
of 2001 against the order of termination. Vide order dated
01.06.2001, interim order of stay of the operation of the
termination order was granted. Vide order dated 27.09.2005, the
writ petition was dismissed, however, despite the order of
dismissal, the petitioner continued in service without any break.
A review petition was filed in the aforesaid writ petition and vide
order dated 24.12.2008, the order of dismissal was modified
and it was ordered that the petitioner shall continue in service till
such time regular selections are made by the respondent-
Corporation. Ultimately, vide order dated 22.08.2014, the
services of the petitioner were regularized and the petitioner
was given regular appointment. The petitioner has joined as
regular helper to mechanic on 23.08.2014. The petitioner moved
a representation for granting technical scale, but no order was
passed. The petitioner had worked upto 31.01.2019 i.e. the date
on which, he has attained the age of superannuation.
[3]. The grievance of the petitioner is that the retiral dues
after his retirement have not been released to the petitioner on
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the ground that the petitioner had less than 5 years of service
and was not eligible for grant of pensionary benefits.
[4]. According to the requirement, an employee must have
at least 10 years of service to his credit for the purposes of
granting retiral benefits.
[5]. Learned counsel for the petitioner with reference to
daily wage services of the petitioner from 30.08.1991 to
22.08.2014 submitted that the daily wage service has to be
considered for the purposes of computation of total length of
service for granting pensionary benefits to the petitioner in view
of Full Bench judgment in Kesar Chand Vs. State of Punjab
and others, 1998(2) PLR 223.
[6]. Per contra, learned counsel for the respondent
submitted that the petitioner was freshly appointed as regular
employee on 22.08.2014 and therefore, past service cannot be
considered for the purposes of computing total length of service
for grant of pensionary benefits. Learned counsel relied upon
the affidavit tendered by the petitioner at the time of joining the
regular service to the effect that the contributory pension
scheme will be applicable after regularization of the service of
the petitioner and as per undertaking given by the petitioner to
the respondent-Corporation, he accepted the appointment letter
at the time of joining on 23.08.2014, thereby accepting the
conditions stipulated in the appointment letter, in which one of
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the condition was that he will not be paid in addition to whatever
salary he had received prior to the date of regularization and no
such claim shall be accepted in future.
[7]. The basic objection raised by the learned counsel for
the respondent is that the petitioner was offered a fresh
appointment, to which he joined the same after executing an
undertaking/affidavit and his engagement was on the post of
mechanic.
[8]. I have heard learned counsel for the parties.
[9]. Evidently, the petitioner was initially appointed as
tubewell-helper on daily wage basis on 30.08.1991. The
services of the petitioner were terminated on 20.04.2001, but
the same was never given effect as there was an interim order
passed in CWP No.6142 of 2001 and order dated 27.09.2005
was reviewed and it was ordered that the petitioner shall
continue in service till such time regular selections are made by
the respondent-Corporation. Till the appointment of the
petitioner on regular basis on 20.08.2014, there was no gap in
service of the petitioner. Learned counsel for the petitioner with
reference to Kesar Chand's case (supra) submitted that the
daily wage service from 30.08.1991 to 22.08.2014 has to be
computed towards total length of service for the purposes of
granting retiral benefits to the petitioner. At the time of giving
fresh regular appointment to the petitioner, the respondent-
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Corporation was enjoying a dominant character and any
undertaking given, will not change the legal position. In the
present writ petition, the petitioner has specifically pleaded in
para No.5 of the writ petition that the petitioner had continued in
service without any break.
[10]. In the corresponding reply, the factum of continuity or
having no break in service has not been denied by the
respondent-Corporation, except to allege that the petitioner was
freshly appointed.
[11]. Having heard learned counsel for the parties, I find that
at the time of appointment of the petitioner on regular basis on
22.08.2014, the respondent-Corporation was at a dominant
status. The appointment letter issued by the respondent-
Corporation and undertaking/affidavit executed by the petitioner
were the result of undue influence and dominant bargain. There
was inequality in the bargaining between the parties due to
dominant character of the respondent-Corporation. If the
situation is analyzed and is judicially tested, the real import of
terms and condition of the appointment letter and execution of
undertaking by the petitioner can come to fore. The inequality of
bargaining power is the result of great disparity in the economic
strength of both the contracting parties and such inequality was
the result of circumstances in which the petitioner was placed.
The principle of unconscionable bargain is applicable in the
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present case due to inequality in the bargaining power of the
parties. The Court can strike down unfair and unreasonable
contract or unfair or unreasonable clause in the contract entered
into between the parties, who are not equal in bargaining power.
[12]. The consent of the petitioner was not voluntary in
nature and was greatly influenced by undue influence. Any such
restriction imposed by the employer would be hit by the ratio laid
down in National Insurance Co. Ltd. Vs. Surjit Ganesh Nayak
and Co. and another, 1997(2) RCR (Civil) 518, in which limit
was prescribed by an agreement contrary to the Limitation Act
or any other law thereby curtailing the right to sue when the right
actually subsists under the law and such condition was held to
be the offending condition under the Law of Limitation. The
agreement sought to curtail the time from that prescribed by law
and it was held that the agreement would fall within the mischief
of the provision.
[13]. Rule 3.17-A of the Punjab Civil Services Rules talks
about all services rendered on the establishment, interrupted or
continuous shall be counted towards qualifying service.
Learned counsel for the petitioner also referred to Ram Dia and
others Vs. Uttar Haryana Bijli Vitran Nigam Ltd. and
another, 2005(4) RSJ 689, Hari Chand Vs. Bhakra Beas
Management Board and others, 2005(2) RSJ 373 and Balbir
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Singh Vs. State of Haryana and others, 2004(4) RSJ 71 in
addition to the full bench judgment in Kesar Chand's case
(supra). Once the services of the petitioner on the post of daily
wage were regularized though fresh appointment was issued,
the same has to be tested on judicial principle whether the same
was on account of unconscionable bargain or not.
[14]. Since there was no gap in service of the petitioner and
the petitioner till his date of appointment on regular basis was in
service, it has to be taken to be a case of regularization on daily
wage service of the petitioner on 22.08.2014. The petitioner had
already put in more than 28 years of service and therefore, he
was entitled to all retiral benefits. The daily wage service
rendered by the petitioner before his regular service is liable to
be counted for qualifying service for the purpose of pension.
[15]. During course of arguments, grant of technical scale to
the petitioner has not been pressed and all other benefits have
been claimed on the basis of ratio laid down in Kesar Chand's
case (supra) as well as on the basis of unconscionable bargain
as deprecated by the Hon'ble Apex Court in National
Insurance Co. Ltd. Vs. Surjit Ganesh Nayak and Co. and
another's case (supra).
[16]. For the reasons recorded hereinabove, this writ petition
is allowed. Normal consequences to follow. Let needful be done
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by the respondent-Corporation within a period of two months
from the date of receipt of certified copy of this order.
04.05.2023 (RAJ MOHAN SINGH)
Prince JUDGE
Whether Reasoned/Speaking Yes/No
Whether Reportable Yes/No
Neutral Citation No:=2023:PHHC:064969
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