Kishan Singh Vs. Financial Commissioner, Haryana and ors. - Court Judgment

Excerpt:
tenancy - ceiling - section 2 (2) of punjab security of land tenures act and article 226 of constitution of india - petitioner challenged validity of computation of ceiling area of his land under section 2 (2) - petitioner's application at first stage before collector found time barred - petitioner could not prove his ground of violation of principles of natural justice - no material placed before court to prove land within limits of surplus area - case failed on all grounds - appeal dismissed. - subordinate/delegated legislation:[d.k. jain & r.m. lodha, jj] banks -voluntary retirement scheme, 2000 (vrs 2000) - held, the amendment in regulation 28, as is reflected from communication dated 5.9.2000, was intended to cover employees who had rendered 15 years service but not completed 20 years service. it was not intended to cover optees who had already completed 20 years service as the provisions contained in regulation 29 met that contingency. even if it be assumed that by insertion of proviso in regulation 28 (in the year 2002 with retrospective effect from 1.9.2000), all classes of employees under vrs 2000 were intended to be covered, such amendment in regulation 28, needs to be harmonised with regulation 29, particularly regulation 29(5) which provides for addition of qualifying service by five years. this would be in tune and consonance with the explanatory note appended to the amendment in regulation 28 wherein it is stated that the amendment with retrospective effect would not adversely affect any employee or officer of the respondent bank. that would also meet the test of fairness. weightage of five years under regulation 29(5) is applicable to the optees having service of 20 years or more. merely because the employees who have completed 15 years of service but not completed 20 years of service are not entitled to weightage of five years for qualifying service under regulation 29(5), the employees who have completed 20 years of service or more cannot be denied such benefit. it is also not correct to say that by taking recourse to regulation 29, the amendment to regulation 28 is rendered otiose. labour & services pension: [d.k. jain & r.m. lodha, jj] banks -employees pension regulations, 1995-regulations 29(5) and 28 proviso (added in 2002 retrospectively from 1.9.2000) - benefit of five years additional qualifying service under regulation 29(5) - availability of benefit to employees taking retirement under voluntary retirement scheme, 2000 (vrs 2000) on completion of 20 years service - held, the benefit is available notwithstanding that such employees had received ex gratia payments under vrs 2000. further regulation 28 which was amended subsequently by adding a proviso retrospectively, could not be applied to such employees. pension: [d.k. jain & r.m. lodha,jj] bona fide delay in payment - inadmissibility of interest - delay due to litigation wherein genuine issue of law needed to be resolved in view of difference of opinion between high courts. besides, stand taken by appellant banks was also not frivolous though ultimately rejected by supreme court. grant of interest, under these circumstances is not warranted. pension: [d.k. jain & r.m. lodha,jj] scope, object and applicability of banks employees pension regulations, 1995- regulation 28, proviso (added in 2002 retrospectively from 1.9.2000) and regulation 29(5) - held, the purpose of the proviso is to confer benefit of pension to those employees who sought voluntary retirement after completion of 15 years but before completion of 20 years of service. proviso cannot be interpreted to deprive benefit of five years additional qualifying service to those employees who took retirement after 20 years of service under vrs 2000. labour & services voluntary retirement scheme: [d.k. jain & r.m. lodha,jj] banks -voluntary retirement scheme, 2000 (vrs 2000) - the appellant public sector banks framed a scheme known as voluntary retirement scheme, 2000 (vrs 2000) under which all permanent employees of bank who had put in minimum 15 years of service or completed 40 years of age were eligible to seek voluntary retirement. the scheme was framed for optimizing the staff strength by shedding excess employees. vrs 2000 provided that an employee whose application for voluntary retirement was accepted, would inter alia be entitled to pension in terms of the employees pension regulations, 1995, in case of those who have opted for pension and have put in 20 completed years of service in the bank. besides, there was also a parallel provision in regulation 29 of the pension regulations, under which an employee with 20 years qualifying service could take voluntary retirement. such an employee was entitled to benefit of five years additional qualifying service under regulation 29(5). the issue involved was, whether an employee with 20 years service, who had taken retirement under vrs 2000 (and not under regulation 29) was entitled to benefit of five years additional qualifying service as provided in regulation 29(5) of the pension regulations. contention of appellant banks was that benefit of five years additional qualifying service was admissible only to an employee who took voluntary retirement under regulation 29, and not to an employee who took retirement under vrs 2000. the employees however relied on ministry of finance communication dated 5.9.2000 (reproduced in para 38 of the judgment) to support their contention that proviso was added to regulation 28 for the purpose that an employee who takes vrs on completing 15 years of service but before 20 years service, also gets pension. held, the employees who had completed 20 years of service and offered voluntary retirement under vrs 2000 are entitled to addition of five years of notional service in calculating the length of service for the purposes of that scheme as per regulation 29(5) of the pension regulations. if the intention was not to give pension as provided in regulation 29 and particularly sub-regulation (5) thereof, the banks could have said so in the scheme itself. much though had gone into formulation of vrs 2000 and it came to be framed after great deliberations. the only provision that could have been in the mind while providing for pension as per the pension regulations was regulation 29. the employees too had the benefit of regulation 29(5) in mind when they offered for voluntary retirement as regulation 28, as was existing at that time, was not applicable at all. vrs 2000 was an attractive package for the employees as they were getting special benefits in the form of ex gratia payments and in addition thereto, inter alia, pension under the pension regulations which also provided for weightage of five years of qualifying service for the purposes of pension to the employees who had completed 20 years service. it would be unreasonable if amended regulation 28 is made applicable, which had not seen the light of the day and which was not the intention of the banks when the scheme was framed. the banks are public sector banks and are state within the meaning of article 12 of the constitution. their action even in contractual matters has to be reasonable, lest, it must attract the wrath or article 14 of the constitution. any interpretation of the terms of vrs 2000, although contractual in nature, must meet the test of fairness. it has to be construed in a manner that avoids arbitrariness and unreasonableness on the part of public sector banks which brought out vrs 2000 with an objective of rightsizing their manpower. the scheme was oriented to lure the employees to go in for voluntary retirement. in this background, the consideration that was to pass between the parties assumes significance and a harmonious construction to the scheme and the pension regulations, therefore, has to be given. contention of the appellant banks were rejected and it was declared that the employees who took retirement under the vrs 2000 are entitled to benefit of five years additional qualifying service under regulation 29(5). voluntary retirement scheme: [d.k. jain & r.m. lodha,jj] banks-voluntary retirement scheme, 2000 (vrs 2000) - effect of employees pension regulations, 1995 having been made part of vrs 2000 held, the precise effect of pension regulations, for the purposes of pension, having been made part f the scheme, is that the pension regulations, to the extent, these are applicable, must be read into the scheme. interpretation clause of vrs 2000 states that the words and expressions used in the scheme but not defined, and defined in the rules/regulations shall have the same meaning respectively assigned to them under the rules/regulations. the scheme does not define the expression retirement or voluntary retirement. therefore the definition of retirement given in regulation 2(y) whereunder voluntary retirement under regulation 29 is considered to be retirement, has to be taken into consideration. regulation 29 uses the expression, voluntary retirement under these regulations. for the purposes of the scheme, it has to be understood to mean with necessary changes in points of details section 23 of the contract act, 1872 has no application to the present fact situation. it cannot be accepted that vrs 2000 did not envisage grant of pension benefits under regulation 29(5) to the optees of 20 years service along with payment of ex-gratia. indian evidence act, 1872 section 115; [d.k. jain & r.m. lodha, jj] estoppel - held, bank employees who had taken retirement under the voluntary retirement scheme, 2000 (vrs 2000) and claimed benefit of additional qualifying service under employees pension regulations, 1995, were not resiling from vrs 2000, rather were enforcing the scheme. question of estoppel therefore does not arise. - he failed to attend; at best, it remains a disputed question of fact whether any banjar gadim and ghairmumkin area, has been included in the permissible area of the appellant.r.s. sarkaria, j.1. this appeal by certificate is directed against an order dated 2-9-68 of the high court of punjab and haryana dismissing in limine a writ petition filed by the appellant, to impugned certain orders of the collector, the commissioner and the financial commissioner passed in proceedings under the punjab security of land tenures act (hereinafter called the act).2. the facts are as follows: the appellant owns land in village desu malkana, tehsil sirsa, district hissar in the state of haryana.3. in proceedings under the punjab security of land tenures act (hereinafter referred to as the act), the collector, surplus area, sirsa, on february 21, 1961, held that since the total holding of the appellant did not exceed 30 standard acres, there was no surplus area with him.4. subsequently, it came to the notice of the collector that the appellant, was in fact, holding much more than the ceiling of 60 ordinary acres fixed under section 2(2) of the act. he, therefore, issued notice to the appellant, why the order be not reviewed. according to the recital in the. collector's order, this notice was served on him. the appellant did not appear and on june 5, 1962, the collector proceeding ex-parte against the appellant, reviewed his earlier order and declared 30 80 ordinary acres equivalent to 11.37 standard acres as surplus area with the appellant.5. about 4 or 5 years thereafter, the appellant filed an application before the collector, for review of his order dated june 5, 1962. the collector rejected the same by a summary order dated january 27, 1967.6. against that order, the appellant went in revision before the commissioner, who rejected the same by an order dated november 15, 1967.7. the appellant's further revision before the financial commissioner met the same fate on april 22, 1968.8. on august 18, 1968, the appellant filed a writ petition under articles 226 and 227 of the constitution, praying for quashing the aforesaid orders dated june 5, 1962, january 1, 1967, november 15, 1967 and april 22, 1968, of the collector, the commissioner and the financial commissioner, respectively. the challenge was based on these grounds:(i) the order dated, june 5, 1962 was illegal and against the principles of natural justice, as the same was passed ex parts without giving any opportunity to the writ petitioner to be heard in the matter.(ii) an area of more than 20 bighas of banjar qadim and chair mumkin quality, which did not fall within the definition of 'land' in the act, was illegally taken into account in determining the 'surplus area.'(iii) there are old tenants in continuous cultivating possession over a part of the total holding of the petitioner since before the coming into force of the act, and the area under such tenants had to be excluded from the purview of surplus proceedings.(iv) in any case, under the act, the petitioner is entitled to a minimum 'permissible area' of 80 standard acres.9. no copy of the petition, which is said to have been filed by the appellant before the collector requesting for review of his order dated june 5, 1962, was filed before the high court. an uncertified copy dated november 4, 1965 has now been placed before us at the time of arguments by the learned counsel for the appellant.10. the learned counsel for the respondent-state has, expressed doubts about the authenticity of the copy. it is pointed out that this copy of the petition is dated november 4, 1965, while the commissioner's order states that the review petition was filed before the collector by the appellant in 1967. however, a copy of the collector's order dated june 5, 1962 is on the file. it is recited therein by the collector that kishan singh was duly served; he failed to attend; and therefore ex-parte proceedings were taken against him. there is no reason to doubt the correctness of his recital.11. the definition in section 2(2) of the act states that 'permissible area'' in relation to a land owner or a tenant, means thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres, such sixty acres.12. persumably, the collector's order dated august 21, 1961, whereby he held that there was no surplus area with the appellant, was passed under the mistaken impression that the limit of the permissible area fired by the act is 30 standard acres; while such limit was 60 ordinary acres. the review was entertained by the collector to correct this mistake. on such review, it was found that the area with the appellant was 93.80 ordinary acres, which was 83.80 acres in excess of the permissible limit. since the order was passed after service of notice on the appellant, it cannot be said by any stretch of imagination, that there was a violation of the principles of natural justice.13. section 24 of the act lays down that the provision in regard to appeal, review and revision under this act shall, so far as may be, be the same as provided in sections 80, 81, 82, 83 and 84 of the punjab tenancy act, 1887.14. section 82 of the punjab tenancy act, relates to review. it prescribes a period of 90 days limitation from the passing of the order for making a review application. this period can be enlarged if the applicant satisfies the collector that he had sufficient cause for not making the application within that period even if the date on the copy of the application for review, now, furnished by the appellant is taken as a true copy of the original, then, also, this application for review was made about three and a half years after the passing of that order. there is nothing said in the application as to why it was not made within the prescribed period of 90 days. it was thus prima facie time-barred.15. it was contended by the learned counsel for the appellant that the collector had no power in view of the proviso to section 82(1) of the punjab tenancy act, which is applicable to such a case to review the earlier order of 1961 which, probably was passed by his predecessor-in- office.16. the contention must be repelled. it is no where alleged in the writ petition or even in the grounds of appeal before this court, that the earlier order dated august 21, 1961 was not passed by the same person, who has passed the later order dated june 5, 1962, sought to be reviewed.17. learned counsel further contended that the impugned order dated june 5, 1962 passed by the collector, suffers from an error of law inasmuch as it has calculated the appellants' permissible area after including about 20 bighas of banjar and ghairmumkin area in the holding of appellant. such a plea. in general terms, was taken before the commissioner also.18. the order dated november 15, 1967, passed by the commissioner, (copy of which is on the file) on the revision, application filed by the appellant against the collector's order dated january 27, 1967, whereby the latter refused to review his order dated august 21, 1961, mentions that the review was sought on the ground that certain area which was banjar jadid or banjar gadin in 1953, was not excluded from his holding in computing his surplus area. the commissioner, however, dismissed this contention with the observation that, according to the ruling of the financial commissioner in r.o r 900, 1965 66, jiwan singh v. amrik singh; the rule laid down by the high court in nemi chand v. state, 'had to be given effect, prospectively, and that cases already decided should not be reopened' in the light of the interpretation of law given in the financial commissioners ruling the commissioner also noted that the collector had refused to review because the application in the respect was 'belated'. we have already noticed that it was time-barred, and the revision could be rejected on this score alone.19. be that as it may, it seems that even in revision before the commissioner, the petitioner did not give the survey numbers or particulars of the land which was alleged to be banjar gadim and ghairmumkin rests, he simply said that more than 20 acres was banjar gadim and ghairmumkin rests and, as such, it did not came within the definition of 'land' and should have been excluded from calculation. even in this writ petition, he did not give particulars of the area alleged to be banjar and ghairmumkin. no extract from the jamabandi or khasra girdawari relating to the year 1953 was filed. the uncertified copy now furnished by the appellant, which purports to be of the collector's order dated january 27, 1967, does not show that any copy of the khasra girdawari or jamabandi was produced before him even at this stage.20. in the absence of any evidence on the record, learned counsel for the state does not concede that any banjar and ghairmumkin area (beyond 8 biswas) was surplus area. at best, it remains a disputed question of fact whether any banjar gadim and ghairmumkin area, has been included in the permissible area of the appellant.21. in the absence of any authentic proof, such as copies of the jamabandi & khasra girdawari of the relevant year, the high court rightly dismissed the writ petition in limine.22. for reason aforesaid, the appeal fails and is dismissed. in the circumstances of the case, we leave the parties to pay and bear their own costs.