Uttarakhand High Court
SPA/46/2022 on 21 March, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
SRI JUSTICE S.K. MISHRA, A.C.J.
AND
SRI JUSTICE R.C. KHULBE, J.
SPECIAL APPEAL NO. 46 OF 2022
21ST MARCH, 2022
BETWEEN:
Himmat Singh .....Appellant.
And
State of Uttarakhand & others ....Respondents.
Counsel for the Appellant : Mr. Anil Anthwal, learned
counsel.
Counsel for the respondents : Mr. B.S. Parihar, learned
Standing Counsel State.
Upon hearing the learned Counsel, the Court made the
following
JUDGMENT: (per SRI S.K. MISHRA, A.C.J.)
Heard Mr. Anil Anthwal, learned counsel for the
appellant, and Mr. B.S. Parihar, learned Standing Counsel for
the State.
2. In this appeal, the appellant has assailed the order
passed by the learned Single Judge in Writ Petition (S/S)
No.97 of 2018, on 23.12.2021, dismissing his prayer.
3. The appellant, in the writ petition, has prayed for
issuance of a writ of mandamus directing the respondents to
count the services rendered by the petitioner in work charge
establishment for the particular purposes including giving
retirement benefits to him.
4. The learned Single Judge, by the impugned
judgment, rejected the petition mainly on two grounds. We
find it apt to quote the exact words used by the learned
Single Judge.
"1. That for the purposes of settlement of his gratuity,
he has already approached before the competent authority
created under the Payment of Gratuity Act, by filing the
proceedings by way of PGA Case No.10 of 2016, which has
been decided. This fact was concealed by the petitioner.
2. But what is more important and will have a direct
bearing on the adjudication of the writ petition is with
regards to the pleadings raised by the respondents in para 3
& 4 of the counter affidavit, where the aspect pertaining to
'the petitioner himself has voluntarily opted for
Contributory Pension Scheme and having received the
payment at the time of superannuation/retirement at
the time of the payment of the earned leave based on
the option extended by the petitioner', was not a fact,
which was pleaded by him in the writ petition, which I am of
the view that it should have been pleaded and disclosed".
5. Firstly, it is contended by the learned counsel for
the appellant that the fact that the petitioner has approached
before the competent authority created under the Payment of
Gratuity Act, for certain reliefs is not relevant for this
particular writ petition. Secondly, the learned counsel for the
appellant further contended that whether the petitioner has
opted for Contributory Pension Scheme or any other scheme,
is also not relevant for the purpose of granting him the relief
for counting the period he had discharged duties in the work
charge establishment.
6. It is also well-settled law, at present, that the
period which the employee rendered in service of the
employer in the work charge establishment shall be computed
for qualifying service. In this connection, we take note of the
reported case of "Prem Singh vs. State of Uttar Pradesh &
others", (2019) 10 SCC 516, wherein the Hon'ble Supreme
Court has held that the employees are also entitled to their
service period discharged as work charge employees to be
included in the qualifying service.
7. In that view of the matter, we find enough ground
to allow the appeal. Hence the appeal is allowed on contest.
8. It is, hereby, directed that the respondents, while
preparing the retiral benefits of the appellant, shall count the
period he has discharged duties in the work charge
establishment. It is also noted that, in the meantime, the
appellant has retired on attaining the age of superannuation.
Therefore, the respondents are directed to complete the
process within a period of three months from the date of
production of a certified copy of this order.
9. Urgent certified copy of this order be granted on
proper application.
(S.K. MISHRA, A.C.J.)
(R.C. KHULBE, J.)
Dated: 21st March, 2022
NISHANT
