Punjab-Haryana High Court
Rapal Jaidka vs Punjab State Power Corporation Ltd And ... on 15 May, 2024
Neutral Citation No:=2024:PHHC:067749
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-26054-2017
Reserved on 08.05.2024
Pronounced on 15.05.2024
Rajpal Jaidka (since deceased) through his LR ....Petitioner
Versus
Punjab State Power Corporation Ltd. and another ....Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Pawan Kumar, Senior Advocate with
Ms. Vidushi Kumar, Advocate for the petitioner.
Ms. Jarnail Kaur Dhaliwal, Advocate
for the respondents.
NAMIT KUMAR J.
1. The petitioner has approached this Court by way of filing
the instant writ petition under Articles 226/227 of the Constitution of
India seeking a writ of mandamus directing the respondents to grant
interest @ 18% per annum on the delayed payment of retiral dues,
benefit of promotional increment on completion of 23 years of regular
service and promotion to the post of Assistant Engineer/AAE w.e.f.
30.06.2014, when persons junior to him were promoted, along with all
consequential benefits.
2. The brief facts of the case, as have been pleaded in the
present petition, are that the petitioner joined the services of the
erstwhile Punjab State Electricity Board (now Punjab State Power
Corporation Limited) on 01.12.1979 as Lineman and was further
promoted to the post of Junior Engineer on 26.06.2000. While he was in
service, he was issued a charge-sheet dated 25.07.2012 (Annexure P-1)
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with the allegations that while he was working as Junior Engineer in
Sub Division Sanaru w.e.f. 13.10.2000, he has committed various
irregularities/violations. The petitioner filed reply dated 05.09.2012
(Annexure P-2) to the charge-sheet. Thereafter, he retired from service,
on attaining the age of superannuation, on 30.09.2014. Since the retiral
dues of the petitioner were not released, he submitted representation to
the respondents for releasing the same. Respondent No.2 vide order
dated 09.07.2015 opined that although, the allegations levelled in the
charge-sheet against the petitioner have not been proved directly but he
has not been held innocent in the inquiry report and since the petitioner
has already retired from service, therefore, by taking a lenient view,
censure be issued to him and in case there was shortage of any material,
recovery is to be effected from him, which may be deducted from his
pensionary benefits. Thereafter, in the month of October, 2015, the
following retiral dues of the petitioner have been released :-
Sr. Details Amount
No. (Rs.)
1. Gratuity 9,35,170/-
2. Commutation of Pension 4,44,912/-
3. Leave Encashment 2,20,000/-
(two increments pertaining to year 2013-2014 to
be added)
4. Arrears of pension 4,13,680/-
Thereafter, the petitioner submitted representation dated 10.11.2015
claiming the benefit of promotional increment on completion of 23
years of service in terms of Finance Circular No.17/1990. As per the
RTI information dated 24.12.2015 (Annexure P-7), the said increment
has not been granted to the petitioner as his ACR for 1999-2000 was not
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available. It has further averred in the petition that the petitioner, whose
seniority number is 8093 as Junior Engineer, was fully eligible for
promotion to the post of Assistant Engineer and he has also passed the
necessary departmental tests vide Annexures P-9 and P-10, however, on
30.06.2014, the persons junior to him namely Daljit Singh (Sr.
No.8095), Jasvir Singh (Sr. No.8099, Vinod Kumar (Sr. No.8101),
Gurmail Singh (Sr. No.8103), Onkar Singh (8106), Ravinder Singh
(8113) and Kulwinder Singh (Sr. No.8118), were promoted as Assistant
Engineer/AAE and the case of the petitioner was not considered for
promotion due to pendency of charge-sheet. During the pendency of the
present petition, the present petitioner has unfortunately died and vide
order dated 27.11.2018 passed in the application bearing CM No.1745-
CWP of 2018, the LR of the petitioner was brought on record. In
nutshell, by filing the instant petition, the petitioner is claiming the
following three reliefs :-
(i) Interest on the delayed payment of retiral dues which
were released after about 13 months.
(ii) Promotional increment on completion of 23 years of
service.
(iii) Promotion to the post of AE/AAE w.e.f. 30.06.2014
when persons junior to him have been promoted.
3. On issuance of notice of motion, reply has been filed by the
respondents wherein it has been stated that the present petition is liable
to be dismissed on the ground of delay and latches as the petitioner
completed 23 years of service in the year 2003 and he never claimed the
said benefit while he was in service and he also never challenged the
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order dated 30.06.2014, when persons junior to him were promoted. It
has further been stated that the petitioner retired from service, on
attaining the age of superannuation, on 30.09.2014 and at that point of
time one charge-sheet dated 25.07.2012 was pending against him. The
said charge-sheet was culminated into passing of order of censure vide
office order dated 09.07.2015 and on conclusion of the charge-sheet, his
case for releasing the retiral dues was processed and the payments were
made accordingly.
4. Learned Senior counsel for the petitioner submits that the
petitioner retired from service, on attaining the age of superannuation,
on 30.09.2014. While he was in service, charge-sheet dated 25.07.2012
was issued to him, which was finally culminated into passing of order of
censure on 09.07.2015 and it has further been ordered that the recovery,
if any, may be effected from the petitioner, however, till date no
recovery has been effected from him. He further submits that retiral
dues of the petitioner has been released after about 13 months from his
retirement, therefore, he is entitled for interest on the delayed payment
of retiral dues. His juniors were promoted on 30.06.2014 and the case of
the petitioner was not considered due to pendency of the charge-sheet
dated 25.07.2012 and for the same reasons he was also not granted the
benefit of promotional increment on completion of 23 years of service.
He has referred to the instructions dated 19.02.1997 issued by the
Punjab State Electricity Board which deals with "General Criteria for
Promotion" and provides that there is no effect of warning or censure on
the promotion case of the officer/official. He has also placed reliance
upon the judgment dated 15.09.2011 passed by this Court in 'Jagir
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Singh Vs. State of Punjab and others' CWP No.16518 of 2008 and
Kuldeep Kaur Vs. Punjab and Haryana High Court and another :
2016(3) RSJ 414.
5. Per contra, learned counsel for the respondents submits that
the charge-sheet dated 25.07.2012 was pending against the petitioner at
the time of his retirement and when the said charge-sheet was
culminated into passing of order of censure and recovery on 09.07.2015,
the case of the petitioner for releasing his retirial dues was processed
and the same have been released in the month of October, 2015. She
further submits that the petitioner completed 23 years of service in the
year 2003 and he never claimed the said benefit while he was in service.
Since the petitioner never challenged the order dated 30.06.2014, when
persons junior to him were promoted, therefore, at this stage, he cannot
claim promotion w.e.f. the said date.
6. I have heard learned counsel for the parties and perused the
relevant record with their able assistance.
7. Admittedly, charge-sheet dated 25.07.2012 was issued to
the petitioner to which he submitted his reply dated 05.09.2012 and the
disciplinary proceedings remained pending and finally vide order dated
09.07.2015, the punishing authority passed the order of censure by
stating that the charges against the petitioner have not been proved
directly in the enquiry and since now the petitioner has already retired
from service, therefore, taking a lenient view, censure is issued to the
petitioner and in case there was shortage of any material and any
recovery is to be effected with regard to the same, the same may be
deducted from his pensionary benefits. Neither any recovery has been
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effected from the retiral benefits of the petitioner nor any other
proceedings have been initiated by the respondent-Corporation for
effecting recovery. The retiral dues of the petitioner have been released
after about 13 months. Although, the petitioner completed 23 years of
service in the year 2003, his case has not been considered for
promotional increment on completion of 23 years of service and a
perusal of RTI information dated 24.12.2015 shows that his case was
not considered for the said purpose as ACR for the year 1999-2000 was
not available. It is also an admitted fact that vide order dated
30.06.2014, persons junior to the petitioner have been promoted and
since on the said date, a disciplinary proceedings were pending against
the petitioner in pursuance of the charge-sheet dated 25.07.2012, his
case was not considered for promotion. Since in the said disciplinary
proceedings, the charges levelled against the petitioner in the charge-
sheet have not been proved and the petitioner has only been ordered to
be censure, therefore, the petitioner is held entitled for the grant of
interest @ 6% per annum for the delayed payment of retiral dues and
his case is liable to be considered by the respondents for grant of
promotional increment on completion of 23 years of service and also for
promotion to the post of Assistant Engineer/AAE w.e.f. 30.06.2014,
when persons junior to him were promoted.
8. In the judgment dated 15.09.2011 passed by this Court in
CWP No.16518 of 2008 titled as 'Jagir Singh Vs. State of Punjab and
others', it has been held that the punishment of censure is not a valid
ground to withhold promotion or increments of an official.
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9. In the case of Kuldeep Kaur Vs. Punjab and Haryana
High Court and another : 2016(3) RSJ 414 it has been held by this
Court that minor punishment of warning cannot be taken a bar for
promotion. The relevant paras of the said judgment reads as under :-
"10. Reference, at this stage, can now be made to a
judgment of Division Bench of this Court in S.S. Karan Vs.
Punjab and Haryana High Court and others., 2015(3)
S.C.T. 620 whereby the petitioner was denied the
promotion on the ground that the punishment of recordable
warning when juniors of petitioner were promoted. The
writ petition was allowed and it was held that the minor
punishment of warning cannot be taken a bar for
promotion.
11. In Jagir Singh Vs. State of Punjab and others,
passed in CWP No.16518 of 2008, decided on 15.09.2011,
the petitioner was a Senior Assistant and had faced a
regular inquiry and thereafter he was exonerated. The
disciplinary authority without confronting the petitioner
with any "Note of Disagreement' passed an order dated
11th February/5th March, 2003 contrary to the enquiry
report. Thereafter, a lenient view was taken and finally the
petitioner was issued a warning to remain careful in future.
Thereafter, he was denied promotion to the post of
Superintendent Gr-II on the basis of above stated minor
punishment. While referring to Punjab Government
instructions dated 10.12.1993 it was held that the award of
Censure may not be any hindrance for
promotion/increment. The writ petition was allowed and
the petitioner was granted promotion to the post of
Superintendent Gr-II with effect from the date when his
juniors were promoted with all consequential benefits.
12. In the present case, the petitioner was issued a
show-cause notice dated 27.05.2009 (Annexure P-5) for
minor penalty under Rule 35 of the High Court
Establishment (Appointment and Conditions of Services)
Rules, 1973 read with Rule 10 of Punjab Civil Services
(Punishment & Appeal) Rules, 1970. A penalty of stoppage
of one annual increment without cumulative effect was
imposed upon Sh. N.S. Tewatia, Dealing Assistant, Sh.
Munish Kumar, Clerk and Ms. Kuldeep Kaur (petitioner)
Restorer, vide memo dated 01.09.2009 (Annexure P-7). The
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respondents while accepting the appeal filed by the
petitioner and the punishment were reduced into a warning
to be careful in future. The respondents, however, have
granted the benefit of retrospective promotion to Sh. N.S.
Tewatia, Dealing Assistant, who was punished along with
the petitioner with minor punishment. The same benefit is
not extended to the petitioner simply on the ground that 8
persons, who were promoted as Clerks, have not been
impleaded as party in the writ petition and the petitioner
cannot bepromoted as there was no vacant post.
13. In compliance to the order dated 12.04.2016, Sanjiv
Kumar, Dimpi Kumar, Raj Rani Sharma, Ashok Kumar and
Ms. Kamlesh Kaur, were impleaded and have filed their
respective affidavit that they have no grievance qua the
promotion given to the petitioner to the post of Clerk with
effect from the date she was entitled for promotion.
14. The case of the petitioner is squarely covered by the
above-said judgments. Accordingly, the present writ
petition is allowed and directions to the respondents to re-
consider the claim of the petitioner for promotion from the
date when her juniors were promoted, with all
consequential benefits, within a period of four months from
the date of receipt of certified copy of this order."
10. Further, the instructions dated 19.02.1997 issued by the
erstwhile Punjab State Electricity Board regarding "General Criteria for
promotion" provides that there is no effect of warning or censure on the
promotion case of the officer/official. The said instructions reads as
under :-
"Punjab State Electricity Board
(Office of Secy. ESTB, BR. 1" Patiala)
FROM
The Secretary,
Punjab State Electricity Board
Patiala
To
1. All GMs/EIC/CEs in the PSEB
2. Chief Controller/Fin., PSEB, Patiala.
3. All CADs/CA/Cost Controller, Patiala
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4. ADGP/V&S, PSEP, Patiala.
5. All SEs/Directors in the PSEB.
6. All XENs in the PSEB:
7. All by Secretaries/U. Secretaries in the PSEB.
Memo NO. 21054/21754 /Misc-49 Dated 19.02.1997
Subject:- General Criteria for promotion.
Promotion in the PSEB are made on the basis of
either seniority-cum-merit or by selection according to
respective service regulations. General guidelines for
making promotions were issued vide this office Memo No.
73836/74536/Misc-49 dated 24.04.1996 so that uniform
pattern is followed in making promotions. These
instructions are silent on certain issues such as
disciplinary cases & evaluation of assessment. For making
promotions to various posts, decisions taken by the Board
or orders by authorities competent for making promotions
are presently taken as guidelines for considering promotion
cases. After careful review of these guidelines and orders, it
has been felt that method of evaluation of employees has to
be quantified for making true assessment of the
case of the employees for promotion. It is made clear that
this is not a case of an employee being awarded double
punishment. These instructions simply try to quantify the
overall Record of an employee, in view of the disciplinary
cases against him. The mater has therefore, been
reconsidered by the Board and it has been decided.to
follow the following promotion criteria and guidelines for
making promotion so that uniform criteria is followed in
making promotions to various posts in the
PSEB:-
(A) Effect of Punish most awarded in disciplinary Cases on
promotion.
1. LETTER OF ADVICE
At present, Letter of Advice issues in a disciplinary
case does not have any effect on the promotion case of an
officer/official, the same should continue in future also.
2. LETTER OF WARNING
At present letter of warning have no effect on the
promotion case of the officer/official, but if there are many
letter of warning then these are viewed by seeing over-all
record.
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To have uniform pattern, it has been decided that 3
letters of warning should be qua 2 in effect to the down-
grading of one ACR one step below:-
For example: If an employee is issued 3 letters of
warning his one ACR which is "Good" will be downgraded
as Average due to the effect of "Letters of Warning"
3. ISSUE OF CENSURE
With present guidelines, one Censure nullified one
good A.C.R. It was felt. that it gives the same effect on
different gradation of ACR's. Outstanding is also
nullified on the other side Good is also nullified. Thus, the
employee with outstanding ACR is put to dis-advantage. It
has therefore been decided that one Censure should
downgrade one ACR one step below so that it gives
uniform effect on all employees e.g. The Outstanding ACR
of the employees having Censure in that year will be
downgraded to very good & if he has a very Good ACR, it
will be downgrade to Good, and so on."
11. So far as interest on the delayed payment of retiral benefits
is concerned, a Full Bench of this Court in A.S. Randhawa Vs. State of
Punjab and others : 1997(3) S.C.T. 468 has held that where there is an
inordinate delay in releasing benefits and the delay is not justifiable,
employee will be entitled for interest. The relevant paragraph of said
judgment is as under:-
"Since a government employee on his retirement becomes
immediately entitled to pension and other benefits in terms
of the Pension Rules, a duty is simultaneously cast on the
State to ensure the disbursement of pension and other
benefits to the retiree in proper time. As to what is proper
time will depend on the facts and circumstances of each
case but normally it would not exceed two months from the
date of retirement which time limit has been laid down by
the Apex Court in M. Padmanabhan Nair's case (supra). If
the State commits any default in the performance of its
duty thereby denying to the retiree the benefit of the
immediate use of his money, there is no gainsaying the fact
that he gets a right to be compensated and, in our opinion,
the only way to compensate him is to pay him interest for
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the period of delay on the amount as was due to him on the
date of his retirement."
12. Apart from this, a Coordinate Bench of this Court in J.S.
Cheema Vs. State of Haryana : 2014(13) RCR (Civil) 355, had held
that an employee will be entitled for the interest on an amount which
has been retained by the respondents without any valid justification. The
relevant paragraph of the said judgment is as under: -
"The jurisprudential basis for grant of interest is the fact
that one person's money has been used by somebody else.
It is in that sense rent for the usage of money. If the user is
compounded by any negligence on the part of the person
with whom the money is lying it may result in higher rate
because then it can also include the component of damages
(in the form of interest). In the circumstances, even if there
is no negligence on the part of the State it cannot be denied
that money which rightly belonged to the petitioner was in
the custody of the State and was being used by it."
13. In view of the above, the present petition is allowed and the
respondents are directed to grant interest @ 6% per annum on the
delayed payment of retiral dues w.e.f. 01.12.2014 (after two months of
his retirement) till the actual date of payment and to consider the case of
the petitioner for grant of promotional increment on completion of 23
years of service and for promotion to the post of Assistant
Engineer/AAE w.e.f. 30.06.2014, when persons junior to him have been
ordered to be promoted, with all consequential benefits, within a period
of 03 months from the date of receipt of certified copy of this order.
(NAMIT KUMAR)
15.05.2024 JUDGE
kothiyal
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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