Ganpat Vs. Haryana State Electricity Board and anr. - Court Judgment

Excerpt:
service - pension - benefit of - punjab civil services rules, 1979 - appellant was working on daily basis under respondent - service of petitioner was not regularized - appellant was retired from service at the age of superannuation - appellant was not granted any pension benefit - appellant filed writ petition for pension benefit - writ petition allowed ex-parte - review application filed by respondents - allowed and ex parte order set aside - hence, present appeal - held, there is neither any scheme of regularization of services nor any scheme for pension benefit - service of petitioner was not regularized and he was working on daily basis - petitioner was retired prior to enactment of rules - hence, petitioner is not entitled to pension and gratuity under rules - appeal dismissed - - we fail to see on what basis such a plea was made or allowed. in view thereof, and looking to the totally separate scheme for retirement benefits for work-charged employees, we fail to see how the respondent can get any benefit of pension under the punjab civil services rules, 1979 which are expressly not applicable to him. it is also well settled that the work charge employee can neither claim regularization of his service as of right nor can be claim pay scale and another financial benefits at par with other regular employees as held by the supreme court in punjab state electricity board and ors.satish kumar mittal, j.1. the petitioner has filed the instant petition for issuing direction to the respondents to grant pension and gratuity to him by treating him a regular employee in view of the full bench decision of this court in kesar chand v. state of punjab and ors. (1988)94 p.l.r. 223 (p & h)(f.b.).2. concededly, the petitioner worked on work charge basis from 1.7.1961 to 30.11.1983, the date of his retirement. the petitioner claimed that even though he had rendered 22 years of service with the respondents, but his services were not regularized and he was retired as work charge employee. consequently, the benefit of pension and gratuity was illegally denied to him.3. in the written statement filed by the respondents, it has been stated that no work charge employee junior to the petitioner was regularized after 4-5 years of service, as alleged by the petitioner. however, it has been stated that a circular dated 8.2.1988 was issued by the respondent-board vide which a policy decision was taken to regularize the services of all work charged employees w.e.f. 1.1.1988 subject to their suitability as judged by the screening committee. it has been further stated that the petitioner could not have been regularized under the said decision because he had already retired from service on 30.11.1983 on attaining the age of superannuation. it is conceded position that before the date of retirement of the petitioner there was no policy for regularization if the work charge employees.4. vide order dated july 05, 2006, this writ petition was allowed ex-parte in absence of the counsel for the respondents while observing that the case of the petitioner is squarely covered by the decision of this court in c.w.p. no. 7279 of 1989 decided on 19.2.1991. subsequently, on review application no. 202 of 2006 filed by the respondents, the aforesaid order dated july 05, 2006 was recalled on the ground that the decision rendered in c.w.p. no. 7279 of 1989 was set aside in l.p.a. no. 310 of 1991 decided on 21.11.2001, and the said fact could not be brought to the notice of the court as the counsel for the respondents was not present. the l.p.a. bench set aside the order of the single bench dated 19.2.1991 in c.w.p. no. 7279 of 1989, while observing as under:by this order, we would dispose of the above noted letters patent appeal and writ petitions since the facts are somewhat similar and the same question of law is involved in all the cases. the relevant facts are being taken from l.p.a. no. 310 of 1991.respondent-petitioner was a work-charge employee of the haryana state electricity board. he was discharged from service by order dated 15.4.1988, annexure p-l. he was admittedly paid provident fund dues under the scheme for contributory provident fund, which is different from the provision made for pension etc., in the case of regular employees under the rules. in the case of executive engineer, pseb and ors. v. teja singh : 2000(10) s.c.c. 15, where terms and conditions of service of work charge employees and regular employees are similar to those applicable in the present case, the supreme court has held that work charge employee was not entitled to the benefit of pension. the ratio of that case is squarely applicable to the facts of the present case. impugned judgment dated 19.2.1991 is, therefore, reversed and set aside.the appeal is, accordingly, allowed and the writ petition dismissed. no costs.5. i have heard the learned counsel for the parties. it is conceded position that the entire service rendered by the petitioner was on work charge basis. when he retired on. 30.11.1983 on attaining the age of superannuation, he was working on work charge basis. it is also conceded position that the petitioner was member of e.p.f. scheme and on his retirement he had received all retrial benefits in terms of the said e.p.f. scheme. before his retirement or immediately after his retirement the petitioner did not make any grouse about the regularization of his services or grant of pension and gratuity etc. it is only in 1989 the petitioner made a representation, copy of which has been annexed as annexure pi with the petition, to the effect that the petitioner had rendered 22 years of service with the respondent-board, but he was never made regular, therefore, in view of the full bench decision of this court in kesar chand's case (supra), the respondent-board while regularizing his services should release the pension and gratuity etc. to him. thereafter in the year 1990 the instant petition was filed.6. during the course of hearing, in support of his case, learned counsel for the petitioner relied upon a decision of the division bench of this court in hseb, panchkula and ors. v. raghbir singh 2006(2) r.s.j. 101, wherein the respondent-board was directed to consider the case of the work charge employees for regularization under the policies of the board dated 30.4.1993 and 11.5.1993 while making the following observations:3. the respondent joined as work charge employee with the board on 1.11.1972 and admittedly retired in that capacity after 21 years i.e. 31.12.1993. it is the case of the respondent that his services ought to have been regularized under the policies annexures p-2 and p-3 dated 30.4.1993 and 11.5.1993, respectively, and if the department had taken action within reasonable time, his case would have fallen under the aforesaid policies which would have entitled him to the benefit of pension as a regular employee. it is not in dispute before us that the age of superannuation of the respondent was 60 years. the learned counsel for the respondent has accordingly relied upon a decision tendered by a division bench in smt. chameli v. the state of haryana and ors. 1999(2) r.s.j. 688 contend that even where the employee had died before his services had been regularized, the high court has issued a direction that services would be deemed to be regularized from the due date and in this view of the matter it was incumbent upon the appellant-board to reconsider the case of the respondent for regularization under the policies aforesaid.4. mr. agnihotri has, however, argued that it was possible that the respondent was overage at the time when the aforesaid policies had come into force which would disentitle the respondent from getting relief. we, however, find that a division bench judgment in badlu ram and ors. v. state of haryana and ors. 2002(2) r.s.j. 160 has held that for the purpose of regularization provided, he deposits a sum of rs. 27,000/- plus interest as noted by the leaned single judge in the impugned order dated 17.1.2001.5. we accordingly allow the appeal, set aside the order of learned single judge but at the same time direct the board to consider the respondent's case for regularization under the policies annexures p-2 and p-3 or any other policy which had been framed by the board.7. on the other hand, learned counsel for the respondents relied upon the decision of the supreme court in executive engineer, pseb and ors. v. teja singh : (2000)10 s.c.c. 15 and the division bench decision of the l.p.a. bench whereby while following teja singh's case (supra), no relief was granted to an employee who retired as work charge employee after completion of more than 20 years of service. in my opinion, the decision of the supreme court in teja singh's case (supra) is squarely applicable to the facts and circumstances of the instant case, wherein it has been observed as under:7. the respondent retired as a work-charged employee. he was also given the full benefits under the employees' provident fund scheme which included the employer's contribution also. after taking all these benefits, he filed a suit claiming additional benefits on the basis that he should be treated as a regular employee. we fail to see on what basis such a plea was made or allowed. it is clear from the plaint which he filed in the suit that he merely claimed that he was legally entitled to be made regular. nowhere has he claimed that he was either absorbed as a regular employee or that he was regularized. that was not the basis of the plaint nor is there any document on record which would show that he was, at any time, a regular employee of the appellants. the very fact that he retired at the age of 60 years as also was given the benefit of the employees' provident fund scheme, is a clear indication that the respondent retired as an employee of the work-charged establishment. in view thereof, and looking to the totally separate scheme for retirement benefits for work-charged employees, we fail to see how the respondent can get any benefit of pension under the punjab civil services rules, 1979 which are expressly not applicable to him. the civil appeal is, therefore, allowed and the impugned judgment and order is set aside and the suit of the respondent is dismissed.8. in my opinion, the division bench decision given by this court in raghbir singh's case (supra) is not applicable in the facts and circumstances of the instant case as in that case a right of consideration for regularization had accrued to the work charge employee on coming into force of the two polices of regularization before his retirement. in that case, the work charge employee retired after 21 years of service as work charge on 31.12.1993 and before that date the respondent-board had framed two policies for regularization i.e. 30.4.1993 and 11.5.1993. in the said decision, it was directed that the case of the said employee, who retired on 31.12.1993, was hot considered for regularization of his work charge service under those policies and the respondent-board was directed to consider the case of the said employee for regularization in terms of those policies, and if his services were deemed to be regularized before the date of his retirement, then consider his case for payment of pension and gratuity. but in case of the present petitioner, prior to the date of his retirement, i.e., 30.11.1983, there was no policy. it is also well settled that the work charge employee can neither claim regularization of his service as of right nor can be claim pay scale and another financial benefits at par with other regular employees as held by the supreme court in punjab state electricity board and ors. v. jagjiwan ram and ors. : (2009)3 s.c.c. 661. if service of a work charge employee is regularized under a scheme framed by the employer, only then he becomes member of the regular establishment from the date of regularization. his services in the work charged establishment cannot be clubbed with in a regular establishment unless a specific provision to that effect is made either in the relevant statute or the scheme of regularization.9. in the instant case, till the time of retirement of the petitioner as work charge employee, there was no scheme of regularisation of the services of the work charged employees. as disclosed in the written statement only in the year 1988 a policy for regularizing the work charge employees was framed, but by that time the petitioner had already retired. thus, before his retirement on 30.11.1983, the petitioner was not entitled for regularisation of his work charge service. thus, he was rightly retired on 30.11.1983 as i work charge employee on attaining the age of superannuation. he was paid all the retrial benefits under that e.p.f. scheme which were accepted by him. thus in view of the decision in teja singh's case (supra), the petitioner, whose entire service was on work charge basis, is not entitled to pension and gratuity etc. under the punjab civil services rules, 1979.in view of the above, there is no merit in the petition and the same is hereby dismissed.