Punjab-Haryana High Court
Chander Prakash vs Dakshin Haryana Bijli Vitran Nigam Ltd ... on 23 April, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:056244
CWP-4278-2020 -1-
2024:PHHC:056244
236
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-4278-2020
Date of decision: 23.04.2024
CHANDER PRAKASH (DECEASED) THROUGH HIS LRs
...Petitioner
VERSUS
DAKSHIN HARYANA BIJLI VITRAN NIGAM LTD AND OTHERS
...Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Shvetanshu Goel, Advocate for the petitioner.
Mr. Vivek Saini, Advocate for the respondents.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present writ petition has been filed under Articles 226/227 of
the Constitution of India seeking issuance of a writ in the nature of certiorari
for quashing the impugned orders dated 04.07.2008 (Annexure P-9) and
09.01.2020 (Annexure P-19) passed by the respondent-DHBVNL being illegal
and arbitrary and further to issue a writ in the nature of mandamus directing the
respondent-DHBVNL to release an amount of Rs.2,13,611/- along with interest
@ 18% per annum to the petitioner within a stipulated time period.
FACTS OF THE CASE
2. Present is a sixth round of litigation filed by the petitioner for
seeking part of his retiral benefits. The petitioner was working as a Junior
Engineer in the respondent-Dakshin Haryana Bijli Vitran Nigam Limited
(hereinafter referred to as DHBVNL) and on 26.11.1999, he was compulsorily
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retired from service. During the pendency of the present writ petition, the
petitioner died on 28.08.2020 and now he is being represented through his four
legal representatives, out of which two are his sons and two are daughters. One
of the daughters, namely, Ritu Ray was a minor at the time of retirement of the
petitioner. When the petitioner was alive, he filed two writ petitions before this
Court bearing Nos.CWP-573-2006 and CWP-531-2006. In one of the writ
petitions i.e. CWP-573-2006, the relief claimed by the petitioner was that
before he was compulsorily retired from service on 26.11.1999, his one
increment was stopped by the competent authority with effect from 01.08.1998,
which was to be restored on 01.08.1999. Thereafter, in pursuance of another
charge-sheet, two increments without future effect were also stopped vide order
dated 18.02.1998 and he was compulsorily retired on 26.11.1999. The effect of
stoppage of one increment as aforesaid stood automatically expired on
01.08.1999 but so far as stoppage of two increments is concerned, since he
already stood compulsorily retired, it could not have been given effect to for
any recovery to be made from his pensionary benefits. In CWP-531-2006, the
relief claimed was with regard to an amount of Rs.2,25,887/-, which was sought
to be recovered from the pensionary benefits of the petitioner on account of
shortage of material and transformer missing parts and oil. This Court disposed
of the aforesaid two writ petitions with a direction to the respondents to decide
the representation of the petitioner. Vide Annexure P-1, an order was passed in
pursuance of directions issued by this Court to decide representation in the first
writ petition i.e. CWP-573-2006 and it was directed that an amount equal to two
annual increments without future effect be recovered from the pensionary
benefits of the petitioner. So far as the second writ petition i.e. CWP-531-2006
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is concerned, in pursuance of the directions issued by this Court, an order was
passed vide Annexure P-2 that since there was shortage of material and
transformer missing parts and oil, recovery of Rs.2,16,492/- was to be
recovered from the petitioner from his pensionary benefits. There was no
disciplinary enquiry or any charge-sheet or any kind of order against the
petitioner at the time when he was in service nor any such charge-sheet was
issued to the petitioner even after that.
3. The petitioner then for the third time again came to this Court and
assailed the aforesaid orders i.e. Annexure P-1 and Annexure P-2 by filing
CWP-18012-2006, in which a Division Bench of this Court disposed of the
aforesaid petition vide Annexure P-4 and again directed the respondents to
decide the legal notice of the petitioner within a period of two months.
Thereafter, vide Annexure P-5, the respondents decided the legal notice of the
petitioner and passed an order dated 09.02.2007, whereby with regard to the
claim of the petitioner pertaining to two increments, it was re-affirmed by
directing that an amount equal to two increments of the retiree was required to
be recovered from his pensionary benefits and the claim pertaining to the
second ground with regard to recovery of an amount of Rs.2,13,611/-, it was
reiterated that the same was recoverable from the petitioner and it was decided
that the aforesaid amount was also recoverable from the pensionary benefits of
the petitioner.
4. Thereafter, the petitioner again approached this Court for the fourth
time by filing CWP-5988-2007 and vide Annexure P-6 dated 11.04.2008, a
Division Bench of this Court set aside the recovery from the retiral benefits of
the petitioner pertaining to the two increments and also recovery of an amount
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of Rs.2,16,492/- from the retiral benefits of the petitioner as being wholly
unjustified. In this way, the claim of the petitioner qua both the heads i.e. for an
amount equal to two increments to be recovered from his pensionary benefits
and an amount of Rs.2,16,492/- on account of shortage of material and
transformer missing parts and oil from his retiral benefits were set aside by a
Division Bench of this Court. The relevant portion of the aforesaid order passed
by a Division Bench of this Court is reproduced as under:-
xxx-xxx-xxx-xxx
We are of the opinion that the action of the
respondents in recovering the said amount of annual
increments is wholly illegal. The punishment was of
stoppage of two annual increments. If the said order could
not be given effect to on account of compulsory retirement of
the petitioner, the respondents cannot recover the cash
equivalent to the increments on account of retirement of the
petitioner. The punishment of stoppage of annual
increments has in fact become redundant. Consequently,
the said stand of the respondents is wholly unjustified.
In respect of recovery of Rs.2,16,492/- on account of
shortages, the learned counsel for the respondents could not
refer to any show cause notice so as to impose a punishment
of the recovery of the loss suffered. Since no proceedings
have been taken to recover the aforesaid amount, we are of
the opinion that the withholding of the retiral benefits to
the said extent are wholly unjustified.
Consequently, we allow the present writ petition and
direct the respondents to release the withheld amount to the
petitioner within a period of three months. However, it
shall be open to the respondents to take appropriate action
in accordance with law to recover the shortages, if any, and
the said process shall be completed by the respondents
within a period of two months.
(emphasis supplied)
5. In this way, both the aforesaid recoveries were directed to be set
aside by a Division Bench of this Court. However, the Division Bench also
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observed that it shall be open to the respondents to take appropriate action in
accordance with law to recover the shortages, if any, and the said process shall
be completed by the respondents within a period of two months. On the basis of
the aforesaid liberty granted to the respondents, the General Manager/OP,
Circle, DHBVNL, Narnaul issued a show cause notice to the petitioner vide
Annexure P-7 on 22.05.2008 by stating that while he was in service, his
material account was checked and it was found that there was a shortage of
some material and the petitioner has failed to submit the account of the
aforesaid shortage and therefore, it has been decided by the competent authority
to recover the amount from his retiral benefits. The aforesaid show cause notice
dated 22.05.2008 (Annexure P-7) is reproduced as under:-
DAKSHINI HARYANA BIJLI VITRAN NIGAM
From
General Manager/OP.
Circle, DHBVN, Narnaul.
To
Sh. ChanderParkesh JE/F (Retd)
C/o DGM/OP. Division, DHBVN, Rewari
Memo No. Ch. 246/ EP-437
Dated:- 22/05/2008
Sub:-Show cause notice
While you were posted as JE-I under OP. Divn,
Rewari you had drawn the material from store. While you
material account was checked it was found that there is
shortage of material worth Rs.101902.00. You failed to
submit your account of above shortage. It has been decided
by the competent authority to/recover the above amount
from your retiral benefits. Similarly below mentioned
amount is outstanding against you as intimated by the
various offices where you had worked before joining the OP.
Division, DHBVN, Rewari
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1. XEB S/U. Divn.No.11, UHBVN,Karnal on A/C of MISC=
2061.00 Adavance due to non depositing of estimated
amount from the consumer.
2. XEB S/U. Divn, UHBVN, Panipat on A/C of material =
75075.00 account found shortage at site.
3. XEB S/U. Divn.No.11, UHBVN,Karnal on A/C of
=34573.00 energy, pending investigationT/F missing parts
and oil.
It has been decided by the competent authority to
recover the above amount i.e. 213611.00 from your
pensionary benefit.
It has therefore, tentatively been decided to recover
Rs.213611.00 From the retiral benefits of Shri Chander
Parkash. JE-I/F (Retired)
But before proceeding further in the matter you are
afforded an opportunity to explain your position to show
cause in writing within 15 days from the receipt of this
communication as to why the proposed action may not be
taken against you.
If you wish to consult the relevant official record for
prepararing defence reply. You may consult the same in the
officer of DGM/OP.Divn, Reward on any working day,
travelling a your own expenses.
In case nothing is heard from your end within the
stipulated period. It will be presumed that you have nothing
to explain in your defence and further action will be taken
against you on the basis of material available on the record
of this office.
The receipt of this communication be acknowledged.
GM/OP.Circle, DHBVN, Narnaul.
(emphasis supplied)
6. The petitioner thereafter filed a detailed reply to the aforesaid show
cause notice vide Annexure P-8 by taking all the grounds especially that in view
of Rule 2.2(b) of C.S.R., Volume-II, no disciplinary action can be taken against
an employee, if the event is more than four years old and no such recovery can
be effected and even no show cause notice could have been issued. However,
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vide impugned Annexure P-9 dated 04.07.2008, the Superintending
Engineer/Op. Circle, DHBVN, Narnaul decided the show cause notice by
observing that in view of the order dated 11.04.2008 (Annexure P-6) passed by
this Court, the office is bound to take appropriate action in accordance with law
and in this way, the petitioner was given personal hearing and it was decided
that the appeal/personal hearing was considered and rejected being not found
feasible and recovery as shown of Rs.2,13,611/- is recoverable from the
petitioner and it was ordered to be recovered from the petitioner. The petitioner
thereafter, filed an appeal against the aforesaid order vide Annexure P-10 by
again stating that no such recovery could have been effected from him after his
retirement and he rather explained that from his retiral benefits, no recovery can
be made.
7. However, the aforesaid appeal was not decided by the appellate
authority and in this way, the petitioner was again constrained to file a writ
petition before this Court, which was a fifth round of litigation vide CWP-
17382-2015, which was again disposed of by this Court on 15.10.2019 vide
Annexure P-18 in view of the statement made by the learned counsel for the
respondent-DHBVNL that the appeal will be decided within a period of three
months. Thereafter, vide impugned order dated 09.01.2020 (Annexure P-19),
the appeal was decided and it was rejected by the Chief Engineer/Op., DHBVN,
Delhi. The appellate authority referred to Rule 2.2(b) of C.S.R. since it was so
referred by the petitioner in the grounds of appeal but observed that it does not
advance the case of the petitioner because the show cause notice dated
22.05.2008 was issued to him within the directions issued by this Court vide
order dated 11.04.2008 (Annexure P-6), wherein it was ordered that it shall be
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open to the respondents to take appropriate action in accordance with law to
recover the shortages, if any and hence, the plea of the petitioner cannot be
considered. The present writ petition has been filed seeking quashing of
impugned orders dated 04.07.2008 (Annexure P-9) and dated 09.01.2020
(Annexure P-19) and also to release the withheld amount of Rs.2,13,611/- along
with interest @ 18% per annum to the petitioner and costs as well.
SUBMISSIONS MADE BY LEARNED COUNSEL FOR THE
PETITIONER
8. Mr. Shvetanshu Goel, learned counsel for the petitioner submitted
that the petitioner has been constrained to file present sixth successive writ
petition before this Court for enforcement of his Constitutional and Statutory
Rights. While referring to the aforesaid facts and orders passed by this Court as
aforesaid, he submitted that there were two recoveries which were to be made
from the petitioner. First was with regard to two increments which were stopped
at the time when the petitioner was in service but was directed to be recovered
from his pensionary benefits and second was with regard to an amount of
Rs.2,16,492/-, which was pertaining to shortage of material and transformer
missing parts and oil at the time when he was in service and was sought to be
recovered from his retiral benefits including the gratuity. Both the aforesaid
issues were decided by a Division Bench of this Court vide Annexure P-6 dated
11.04.2008 and the Division Bench set aside both the aforesaid recoveries,
which were sought to be made from the petitioner. Direction was issued to
release the withheld amount within three months. He further submitted that
although there was an observation of the Division Bench of this Court in the
aforesaid order Annexure P-6 that it will be open to the respondents to take
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appropriate action in accordance with law to recover the shortages, if any, and
the said process shall be completed by the respondents within a period of two
months and in this way, the respondents were granted liberty to proceed in
accordance with law to recover the shortages, if any, but the respondents instead
of proceeding in accordance with law have thereafter issued a fresh show cause
notice to the petitioner vide Annexure P-7 with a pre-determined mind, without
any authority of law and without any provision of law.
9. Learned counsel for the petitioner also submitted that the petitioner
had retired in the year 1999 and the aforesaid show cause notice has been issued
to him in the year 2008, which is about 9 years after his retirement and without
even specifying as to what was the date when the event took place at the time
when he was in service. He further submitted that firstly the provisions of Rule
2.2(b) of the Punjab Civil Services Rules, as applicable to the State of Haryana
were not even applicable to the respondenet-DHBVNL and even if assumingly
the same were applicable, then rather no such action could have been taken
against the petitioner after his retirement for an event which was more than 4
years old, whereas the show cause notice was issued to him about 9 years after
his retirement and therefore, on the face of it, such kind of show cause notice
could not have been issued because there was no provision and there was no
authority of law with the respondent-DHBVNL to have issued such a show
cause notice to the petitioner. He further submitted that a Division Bench of this
Court had only granted liberty to the respondents to 'proceed in accordance
with law' but the respondents with a view to circumvent the orders passed by
the Division Bench issued such a show cause notice by violating the provisions
of law and with a pre-determined mind.
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10. Learned counsel for the petitioner referred to the language which
has been used in the aforesaid show cause notice (Annexure P-7), wherein it has
been so stated not only once but twice that it has been decided by the competent
authority to recover the aforesaid amount and when the petitioner filed reply to
the aforesaid show cause notice vide Annexure P-8 by stating that the
respondents have no authority of law and they cannot issue show cause notice
or recover the amount under any provision of law, the same was not even
considered while passing the impugned order Annexure P-9. He further
submitted that a perusal of Annexure P-9 would show that not even a single
reason has been mentioned and the order is ipse dixit of the officer to pass the
order for recovery of Rs.2,13,611/-. He further submitted that still when the
petitioner filed an appeal, the respondent-DHBVNL did not even consider the
appeal and he was again constrained to file a writ petition before this Court and
again with a direction of this Court for the fifth time when he filed the petition
that the appeal was decided and when the appeal was decided vide Annexure
P-19, again in order to circumvent the order passed by a Division Bench of this
Court vide Annexure P-6 and even by noting that liberty was only to take
appropriate action in accordance with law, again an order was passed by
rejecting the appeal of the petitioner and the said appeal was decided after a
period of about 12 years.
11. Learned counsel for the petitioner also referred to the judgments of
Division Bench of this Court in Hans Raj Sharma versus Uttar Haryana Bijli
Vitran Nigam Limited, CWP-152-2004, decided on 29.07.2004, Ashok Kumar
Dhamija Versus Dakshin Haryana Bijli Vitran Nigam Limited and others,
CWP-7949-2005, decided on 21.09.2006, Ram Narain Dua versus Dakshin
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Haryana Bijli Vitran Nigam Limited and others, CWP-8095-2005, decided on
21.09.2006 and Suraj Mal versus Uttar Haryana Bijli Vitran Nigam Limited
and others, CWP-12036-2008, decided on 11.09.2008 to contend that in the
absence of any show cause notice or enquiry or disciplinary proceedings, no
recovery can be effected on the ground of shortage of material and transformer
missing parts and oil. He further submitted that in one of the aforesaid cases,
the present respondent-Nigam i.e. Dakshin Haryana Bijli Vitran Nigam Limited
was a party and it was obligatory upon the officers of the respondent-Nigam to
have known the law of the land that in the absence of any disciplinary
proceedings etc., no recovery can be effected and the aforesaid law is no longer
res integra.
SUBMISSIONS MADE BY LEARNED COUNSEL FOR THE
RESPONDENTS
12. On the other hand, learned counsel for the respondents submitted
that the aforesaid impugned orders i.e. Annexure P-9 and Annexure P-19 have
been passed by the respondent-DHBVNL in view of the liberty granted by a
Division Bench of this Court as aforesaid.
ANALYSIS OF SUBMISSIONS OF LEARNED COUNSEL FOR THE
PARTIES
13. I have heard the learned counsels for the parties.
14. It is a typical case where the petitioner, who was an employee of
the respondent-DHBVNL had to knock the doors of this Court for the sixth time
for redressal of his grievances pertaining to his Statutory and Constitutional
Rights. Pension and pensionary benefits is a Constitutional Right since it is
Right to Property and Article 300-A of the Constitution of India provides that
no person shall be deprived of his Right to Property except by the authority of
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law. The petitioner was compulsorily retired from service on 26.11.1999 and
thereafter, he filed number of petitions before this Court as aforesaid and the
present is a writ petition of the year 2020 which is his sixth petition and during
the pendency of the present writ petition, the petitioner unfortunately died on
28.08.2020 and he could not get his grievances redressed from the respondent-
DHBVNL. In this way, there is a long drawn litigation for redressal of
grievances pertaining to Right to Property for a period of about 24 years. Now
the petitioner is represented through his four legal representatives, two of whom
are his sons and two are his daughters and as per the age given in the memo of
parties, one of the legal representatives, namely, Ritu Ray, who is the daughter
of the petitioner was minor at the time of the retirement of the petitioner when
he was deprived of part of his retiral benefits.
15. When earlier the petitioner was inflicted with punishment of
stoppage of two annual increments and recovery was also effected from his
retiral benefits on account of shortage of material and transformer missing parts
and oil, he had been agitating as aforesaid through various writ petitions before
this Court and ultimately vide Annexure P-6, a Division Bench of this Court set
aside both the actions of the respondent-DHBVNL. Rather a direction was
issued to release the withheld amount within three months. However, liberty
was granted to the respondent-DHBVNL to take appropriate action in
accordance with law to recover the shortages, if any. Had there been any
provision of law or any authority of law or any procedure for recovery of any
amount after a lapse of so many years, then certainly the respondent-DHBVNL
could have considered and decided to proceed for making recovery in
accordance with law. However, under the garb of the aforesaid liberty granted,
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which was subject to the condition that it has to be in accordance with law, a
show cause notice was issued vide Annexure P-7 to the petitioner.
16. The aforesaid show cause notice has to be analysed also from two
perspectives. Firstly, a perusal of the aforesaid show cause notice as reproduced
above would show that it has been issued by stating in so many words and by
repeating the same that it has been 'decided' by the competent authority to
recover the amount from the retiral benefits of the petitioner. It is very strange
that a show cause notice was issued for grant of opportunity of hearing, wherein
it was already decided to recover the amount and therefore, clearly it was a case
of a pre-determined mind and issuance of show cause notice was
merely an empty formality and therefore, not only that it was non-est and void
ab initio being issued with a pre-determined mind but was also contrary and
violative of the order passed by a Division Bench of this Court vide Annexure
P-6, wherein it was so observed that liberty is granted to the respondent-
DHBVNL to proceed in accordance with law. Issuance of a show cause notice
with a pre-existent decision to recover the amount cannot be said to be in
accordance with law and is violative of rule of audi alteram partem. Secondly,
show cause notice has been issued in the year 2008, whereas the petitioner was
compulsorily retired in the year 1999 and after about 9 years, the show cause
notice was issued to a retired employee after the master and servant relationship
had already ceased to exist. This Court need not go into the issue as to whether
Rule 2.2(b) of the Punjab Civil Services Rules, as applicable to the State of
Haryana was applicable to the respondent-DHBVNL or not because even if
assumingly it was so applicable, no notice or charge-sheet could have been
issued to a retired employee for an event which took place more than four years
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preceding the issuance of a charge-sheet and therefore, ex-facie such a notice
was not in accordance with law. When the petitioner submitted reply to the
aforesaid show cause notice vide Annexure P-8, he took up all these issues that
no such recovery could be effected from him in the aforesaid facts and
circumstances but strangely enough when the impugned order Annexure P-9
was passed, the Superintending Engineer/Op. Circle, DHBVN, Narnaul, who
passed the order has not even given a single reason whatsoever as to why and
how such recovery of Rs.2,13,611/- is to be effected from the petitioner.
Although he referred to the order passed by a Division Bench of this Court,
wherein liberty was granted to the respondent-DHBVNL to take an appropriate
action in accordance with law but when order was passed, it was without
assigning any reason especially with regard to the lack of authority of law.
Annexure P-9 was ipse dixit of the aforesaid officer. Not only this, even
otherwise also no recovery could have been effected from the petitioner on
account of shortage of material and transformer missing parts and oil in view of
the settled law.
17. A Division Bench of this Court in Hans Raj Sharma's case
(supra) held as under:-
"5. It has been settled by the Supreme Court in case of P.R.
Nayak vs. Union of India, AIR 1972 Supreme Court 554 that
issuance of a charge-sheet is sine-qua-non for initiation of
departmental enquiry. Till date, no charge-sheet has been issued.
There is no justification for withholding the pension of the
petitioner".
18. A Division Bench of this Court Ashok Kumar Dhamija's case
(supra) held as under:-
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"2. Having heard the learned counsel for the parties, we are
of the considered view that the respondents could not have
withheld any amount of gratuity payable to the petitioner on
account of allegations which have emanated after the date of his
retirement. Such a course is not available to the respondents. In
some what similar circumstances, this Court has earlier also in
the case of Hans Raj Sharma vs. Uttar Haryana Bijli Vitran
Nigam Limited and others 9Civil Writ Petition No.152 of 2004,
decided on October 29, 2004) has allowed the writ petition by
following the judgment of Hon'ble Supreme Court in P. R. Naik
vs. Union of India, AIR 1972 SC 554. It has been laid down in
the aforementioned judgment that issuance of charge-sheet for
initiation of departmental enquiry is a sine qua non."
19. A Constitution Bench of Hon'ble Supreme Court in Deokinandan
Prasad versus State of Bihar and others, 1971(2) SCC 330, held that pension
is not a bounty of the State and is rather a valuable right. The relevant portion of
the aforesaid judgment is reproduced as under:-
"31. The matter again came up before a Full Bench of the
Punjab and Haryana High Court in K.R. Erry v. The State of
Punjab, ILR (1967) Punj & Har 278. The High Court had to
consider the nature of the right of an officer to get pension. The
majority quoted with approval the principles laid down in the
two earlier decisions of the same High Court, referred to
above, and held that the pension is not to be treated as a
bounty payable on the sweet-will and pleasure of the
Government and the right to superannuation pension including
its amount is a valuable right vesting in a Government servant.
It was further held by the majority that even though an
opportunity had already been afforded to the officer on an
earlier occasion for showing cause against the imposition of
penalty for lapse or misconduct on his part and he has been
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found guilty, nevertheless, when a cut is sought to be imposed
in the quantum of pension payable to an officer on the basis of
misconduct already proved against him, a further opportunity
to show cause in that regard must be given to the officer. This
view regarding the giving of further opportunity was expressed
by the learned Judges on the basis of the relevant Punjab Civil
Service Rules. But the learned Chief Justice in his dissenting
judgment was not prepared to agree with the majority that
under such circumstances a further opportunity should be
given to an officer when a reduction in the amount of pension
payable is made by the State. It is not necessary for us in the
case on hand, to consider the question whether before taking
action by way of reducing or denying the pension on the basis
of disciplinary action already taken, a further notice to show
cause should be given to an officer. That question does not
arise for consideration before us. Nor are we concerned with
the further question regarding the procedure, if any, to be
adopted by the authorities before reducing or withholding the
pension for the first time after the retirement of an officer.
Hence we express no opinion regarding the views expressed by
the majority and the minority Judges in the above Punjab High
Court decision, on this aspect. But we agree with the view of
the majority when it has approved its earlier decision that
pension is not a bounty payable on the sweet-will and pleasure
of the Government and that, on the other hand, the right to
pension is a valuable right vesting in a government servant.
32. This Court in State of Madhya Pradesh v. Ranojirao
Shinde and another, AIR 1968 SC 1053 had to consider the
question whether a "cash grant" is "property" within the
meaning of that expression in Articles 19(1)(f) and 31(1) of the
Constitution. This Court held that it was property, observing "it
is obvious that a right to sum of money is property".
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20. Thereafter, in State of Kerala versus M. Padmanabhan Nair,
(1985) 1 SCC 429, the Hon'ble Supreme Court observed that pension and
gratuity are no longer any bounty to be distributed by the Government to its
employees on their retirement but are valuable rights and property, in their
hands. This authoritative law was thereafter again reiterated by the Hon'ble
Supreme Court in Dr. Uma Agrawal Vs. State of U.P. and another, 1999(3)
SCC 438.
21. Thereafter, Hon'ble Supreme Court in another authoritative
judgment passed in State of Jharkhand and others versus Jitendra Kumar
Srivastava and another, 2013(12) SCC 210 again discussed the entire law
regarding valuable rights pertaining to the grant of pensionary benefits. Para
Nos.8 and 16 of the aforesaid judgment is reproduced as under:-
"8. It is an accepted position that gratuity and pension are not
the bounties. An employee earns these benefits by dint of his
long, continuous, faithful and un-blemished service.
Conceptually it is so lucidly described in D.S. Nakara and Ors.
Vs. Union of India; (1983) 1 SCC 305 by Justice D.A. Desai,
who spoke for the Bench, in his inimitable style, in the following
words:
"18. The approach of the respondents raises a vital and
none too easy of answer, question as to why pension is
paid. And why was it required to be liberalised? Is the
employer, which expression will include even the State,
bound to pay pension? Is there any obligation on the
employer to provide for the erstwhile employee even after
the contract of employment has come to an end and the
employee has ceased to render service?
19. What is a pension? What are the goals of pension?
What public interest or purpose, if any, it seeks to serve?
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If it does seek to serve some public purpose, is it thwarted
by such artificial division of retirement pre and post a
certain date? We need seek answer to these and incidental
questions so as to render just justice between parties to
this petition.
20. The antiquated notion of pension being a bounty a
gratituous payment depending upon the sweet will or
grace of the employer not claimable as a right and,
therefore, no right to pension can be enforced through
Court has been swept under the carpet by the decision of
the Constitution Bench in Deokinandan Prasad v. State of
Bihar and Ors. (1971) 2 SCC 330 wherein this Court
authoritatively ruled that pension is a right and the
payment of it does not depend upon the discretion of the
Government but is governed by the rules and a
Government servant coming within those rules is entitled
to claim pension. It was further held that the grant of
pension does not depend upon any one's discretion. It is
only for the purpose of quantifying the amount having
regard to service and other allied maters that it may be
necessary for the authority to pass an order to that effect
but the right to receive pension flows to the officer not
because of any such order but by virtue of the rules. This
view was reaffirmed in State of Punjab and Another Vs.
Iqbal Singh(1976) 2 SCC 1".
It is thus hard earned benefit which accrues to an employee and
is in the nature of "property". This right to property cannot be
taken away without the due process of law as per the provisions
of Article 300-A of the Constitution of India.
16. The fact remains that there is an imprimatur to the legal
principle that the right to receive pension is recognized as a
right in "property". Article 300-A of the Constitution of India
reads as under:
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"300-A Persons not to be deprived of property save by
authority of law.- No person shall be deprived of his property
save by authority of law."
Once we proceed on that premise, the answer to the question
posed by us in the beginning of this judgment becomes too
obvious. A person cannot be deprived of this pension without the
authority of law, which is the Constitutional mandate enshrined
in Article 300-A of the Constitution. It follows that attempt of the
appellant to take away a part of pension or gratuity or even
leave encashment without any statutory provision and under the
umbrage of administrative instruction cannot be countenanced."
22. In Tukaram Kana Joshi and others through Power of Attorney
Holder versus M.I.D.C. and others, 2013(1) SCC 353, it was held by the
Hon'ble Supreme Court that right to property is now considered to be not only a
Constitutional or a Statutory Right but also a human right. Para 9 of the
aforesaid judgment is reproduced as under:-
"9. The right to property is now considered to be not only a
constitutional or a statutory right but also a human right.
Though, it is not a basic feature of the Constitution or a
fundamental right. Human rights are considered to be in realm
of individual rights, such as the right to health, the right to
livelihood, the right to shelter and employment etc. Now
however, human rights are gaining an even greater multi faceted
dimension. The right to property is considered very much to be a
part of such new dimension. (Vide: Lachhman Dass v. Jagat
Ram, (2007) 10 SCC 448; Amarjit Singh v. State of Punjab,
(2010)10 SCC 43; State of Madhya Pradesh v. Narmada
Bachao Andolan, (2011)7 SCC 639, State of Haryana v.
Mukesh Kumar, (2011)10 SCC 404 and Delhi Airtech Services
(P) Ltd. v. State of U.P., (2011)9 SCC 354.
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23. In the present case, it is ex facie clear that the respondent-
DHBVNL while passing the impugned orders i.e. Annexure P-9 and Annexure
P-19 has not only violated the statutory provisions but there has been a direct
infraction of Articles 21 and 300-A of the Constitution of India. It is also a
settled law that right to life guaranteed under Article 21 of the Constitution of
India includes right to livelihood.
24. A Constitution Bench of Hon'ble Supreme Court in Olga Tellis and
others versus Bombay Municipal Corporation and others, (1985) 3 SCC 545
held that right to life includes right to livelihood. It was observed that an
equally important facet of right to life is the right to livelihood because no
person can live without the means of living, that is, the means of livelihood. If
the right to livelihood is not treated as a part of the Constitutional Right of life,
the easiest way of depriving a person of his right to life would be to deprive him
of his means of livelihood to the point of abrogation.
25. When the petitioner filed an appeal against the aforesaid order, the
respondent-DHBVNL did not decide the same for about 12 years and in the
meanwhile, the petitioner had to again file a writ petition before this Court,
wherein the learned counsel for the respondent-DHBVNL had stated that the
appeal will be decided and in this way, vide impugned order dated 09.01.2020
(Annexure P-19), the appeal was rejected by the Chief Engineer/Op., DHBVN,
Delhi.
26. A perusal of aforesaid impugned order Annexure P-19 would show
that when the appellate authority rejected the appeal, it also stated that the plea
of the petitioner for taking shelter of Rule 2.2(b) of C.S.R. cannot advance his
case because the show cause notice was issued to the petitioner with the
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directions of the High Court dated 11.04.2008 in CWP-5988-2007, wherein it
was ordered that it shall be open to the respondent-DHBVNL to take
appropriate action in accordance with law to recover the shortages, if any and
hence, the plea of the petitioner cannot be considered. It is again very strange to
see that the appellate authority of the level of a Chief Engineer/Op., DHBVN,
Delhi also concurred with that of the order passed by the Superintending
Engineer/Op. Circle, DHBVN, Narnaul and stated that since the High Court has
so observed that it shall be open to the respondent-DHBVNL to take
appropriate action in accordance with law to recover the shortages, if any, the
same could have been taken. However, it is clear that the show cause notice
(Annexure P-7) was neither 'appropriate' nor was it 'in accordance with law'
and these two conditions were pre-requisite in the aforesaid order.
27. The present is a case which is based upon the principle of res ipsa
loquitur i.e. when facts speak for themselves. Vide Annexure P-6, a Division
Bench of this Court had set aside both the aforesaid actions of the respondent-
DHBVNL and directed respondents to pay withheld amount within three
months. But liberty was granted to the respondent-DHBVNL to take
appropriate action in accordance with law for recovery of shortages, if any. The
aforesaid action taken by the respondent-DHBVNL was neither appropriate nor
in accordance with law. The officers of the respondent-DHBVNL, who passed
the impugned orders i.e. Annexure P-9 and Annexure P-19 were supposed to
know the law of the land and also they were supposed to know how the orders
of the Courts are to be implemented. A Division Bench of this Court had only
granted liberty to the respondent-DHBVNL to take appropriate action in
accordance with law but the aforesaid action is absolutely contrary to law not
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only on account of the fact that after the retirement of the petitioner, no such
action could have been taken against him but also in view of the aforesaid
settled law that for shortage of material and transformer missing parts and oil,
no action can be taken in the absence of any enquiry or charge-sheet or any
disciplinary proceedings. In the present case, it is an admitted position that no
enquiry or charge-sheet or disciplinary proceedings were initiated against the
petitioner at any stage.
28. As to how the respondent-DHBVNL has not only abused the
process of law in a contemptuous manner but also made a mockery of law can
be again summarized as follows:-
(i) When a Division Bench of this Court on 11.04.2008 after
setting aside action of respondents withholding retiral benefits of
petitioner allowed the petition and clearly directed the respondents
to release the withheld amount to the petitioner within three
months, the same has not been implemented till date i.e. 15 years
have elapsed. Liberty granted to take appropriate action in
accordance with law to recover the shortages, if any, was different
from the direction made to release the amount. Both of the above
observations could not have been integrated by respondents to suit
their own convenience. Liberty granted was for a subsequent event
but the respondents nullified the positive direction to release
withheld amount under the garb of liberty.
(ii) In the impugned order, the Superintending Engineer/Op.
Circle, DHBVN, Narnaul even after noting that he is bound to take
'appropriate action' and 'in accordance with law' rather acted
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contrary to law. The petitioner retired in the year 1999. There was
no enquiry, charge-sheet or any order of competent authority
against the petitioner prior to his retirement. However, from his
retiral benefits, an amount was withheld due to shortage of material
and transformer missing parts and oil. This order and action was
set aside by a Division Bench of this Court. Then in case in
pursuance of liberty granted by this Court was to be availed of then
it had to be in accordance with law. After 9 years of his retirement,
a show cause notice was issued without there being any provision
of law under any Rules. There is nothing on the record to show as
to under what authority of law the show cause notice was issued.
Only reference has been made in Rule 2.2(b) of C.S.R., in the order
passed by Appellate Authority vide Annexure P-19, whereas such
Rule does not apply to the present petitioner because there is
nothing on the record to show any adoptation of Punjab Civil
Services Rules (as applicable to the State of Haryana) to the
respondent-Nigam. Even if assumingly they are so applicable, then
otherwise also the aforesaid Rule could not be invoked because
event, if any, was more than 9 years from date of issuance of show
cause notice. Law in this regard has already been settled by
plethora of judgments of this Court as have been described above
in which even in some cases, present Nigam is a party.
(iii) Show cause notice is clearly with a pre-determined mind,
wherein twice it has been stated that it has been 'decided' to
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recover from the petitioner. Therefore, it was a mere empty
formality and violative of rule of audi alteram partem.
(iv) Impugned order Annexure P-9 is ex facie un-reasoned order.
Although petitioner raised various issues in reply to show cause
notice vide Annexure P-8 but not even a single issue raised was
discussed and not even single reason was mentioned in the order
Annexure P-9.
(v) The appellate authority took 12 years in deciding the appeal
and that too when directions were issued by this Court on filing of
a writ petition by the petitioner for fifth time.
(vi) Present petition is a sixth petition filed by the petitioner and
during pendency of this petition, he has died after struggling for his
Statutory and Constitutional Rights for 21 years.
29. In view of the aforesaid facts and circumstances of the present
case, the present writ petition is allowed. Both the impugned orders dated
04.07.2008 (Annexure P-9) and dated 09.01.2020 (Annexure P-19) are hereby
set aside. Respondent-DHBVNL is directed to refund an amount of
Rs.2,13,611/- to the petitioner, along with interest @ 6% per annum (simple),
within a period of three months from today. In case the aforesaid amount is not
refunded to the petitioner within a period of aforesaid three months, then the
petitioner shall be entitled for future rate of interest @ 9% per annum.
30. Considering the aforesaid facts and circumstances, wherein the
petitioner had not only knocked at the doors of this Court for six times but he
also lost his battle of life while litigating before this Court for enforcement of
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his Statutory and Constitutional Rights, this Court is therefore of the view that
although the action of the aforesaid officers of the respondent-DHBVNL, who
passed the aforesaid impugned orders was contemptuous in nature but
considering the fact that the aforesaid orders were passed in the year 2008 and
2020, respectively, instead of proceeding against the aforesaid officers for
contempt of Court, it will be just and proper and in the interest of justice to
impose exemplary costs upon the respondent-DHBVNL in the present case. The
aforesaid costs are assessed as Rs.8,00,000/- (Eight lacs) in the nature of
compensation.
31. This Court is conscious of the fact with regard to the quantum of
costs in the nature of compensation but considering the action of respondents to
have caused gross abuse of process of law, the quantum of costs is well justified
being in the interest of justice. The Hon'ble Supreme Court in D.K. Basu versus
State of West Bengal, 1997 (1) SCC 416 observed that grant of compensation in
proceedings under Article 32 or 226 of the Constitution of India for the
established violation of the Fundamental Rights guaranteed under Article 21 is
an exercise of the Courts under the public law jurisdiction for penalising the
wrong-doer and fixing the liability for the public wrong on the State which
failed in the discharge of its public duty to protect the Fundamental Rights of
the citizen. It was further observed that the Courts have the obligation to satisfy
the social aspirations of the citizens because the Courts and the law are for the
people and expected to respond to their aspirations and a Court of law cannot
close its consciousness and aliveness to stark realities In the concluding part, it
was further observed that it is a well accepted proposition in most of the
jurisdictions that monetary or pecuniary compensation is an appropriate and
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indeed an effective and sometimes perhaps the only suitable remedy for
redressal of the established infringement of the Fundamental Right to life of a
citizen by the public servants and the State is vicariously liable for their acts.
32. There are four legal representatives, who are representing the
petitioner. Therefore, it is directed that out of the aforesaid costs of
Rs.8,00,000/- (Eight lacs), Rs.4,00,000/- (Four lacs) shall be paid to all the four
legal representatives of the petitioner proportionately by the respondent-
DHBVNL at the first instance and the same be paid to them within the period of
three months from today. With regard to the remaining costs of Rs.4,00,000/-
(Four lacs), the same shall be paid by the respondent-DHBVNL to the High
Court Legal Services Committee within the aforesaid period of three months as
well. Thereafter, the aforesaid costs shall be recovered by the respondent-
DHBVNL from the aforesaid officers, who have passed the impugned orders
i.e. Annexure P-9 and Annexure P-19 proportionately, i.e. Rs.4,00,000/- (Four
lacs) from the Superintending Engineer/Op. Circle, DHBVN, Narnaul and
Rs.4,00,000/- (Four lacs) from the Chief Engineer/Op., DHBVN, Delhi. In case
the aforesaid officers are already in service, then the aforesaid amount shall be
recovered from them expeditiously in accordance with law and in case they
have retired from service, then the same shall be recovered from them by filing
a civil suit against them in accordance with law.
(JASGURPREET SINGH PURI)
23.04.2024 JUDGE
Chetan Thakur
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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