Uttar Haryana
Bijli Vitran Nigam Ltd. & Ors. Vs. Surji Devi [2008] Insc 77 (22 January 2008)
S.B.
Sinha & V.S. Sirpurkar
[Arising
out of SLP (Civil) No. 4392 of 2004] WITH
CIVIL APPEAL NOs.577 and 587-588 OF 2008 [Arising out of SLP (Civil) Nos. 9311
and 19530-19531 of 2004] S.B. SINHA, J :
1.
Leave granted.
2. The
short question involved in these appeals, arising out of the judgments and
orders dated 18.09.2003 and 5.03.2004 passed by the High Court of Punjab and Haryana
in C.W.P. Nos. 631, 1110 of 2003 and Review Application No. 71 of 2004
respectively, is as to whether family members of a deceased employee who was
appointed on a work-charged basis would be entitled to family pension?
3. For
the purpose of disposal of these appeals, we would note the factual matrix only
from the Civil Appeal arising out of SLP (C) No. 4392 of 2004 titled Uttar Haryana
Bijli Vitran Nigam Ltd. & ors. v. Surji Devi.
4.
Appellant No. 1 was the successor of Haryana State Electricity Board which was
constituted under Section 5 and incorporated under Section 12 of the
Electricity (Supply) Act, 1948. Respondent (Surji Devi) is the widow of Late Shri
Krishan. He was appointed on a work-charge basis on or about 12.08.1974.
Indisputably he continued to serve the appellant no. 1 in the same capacity.
While in service, he expired on 11.08.1985. Respondent was appointed on
compassionate ground in the services of the appellant Corporation in terms of
an exgratia scheme.
Concededly,
the deceased was a member of a Contributory Provident Fund constituted under a
Scheme.
Despite
the same, the respondent filed an application for grant of family pension,
which pertains to altogether a different scheme.
5.
Concededly, Late Shri Krishans services were never regularized.
The
scheme for regularization also came into force in 1986.
As the
claim of the respondent no. 1 for grant of family pension was declined, she
filed a writ petition before the High Court of Punjab and Haryana. The High
Court by reason of the impugned judgment dated 18.09.2003, relying on or on the
basis of its earlier decision rendered in Civil Writ Petition No. 7506 of 1998
titled Kanta Devi v. State of Haryana and Others decided on 16.12.1999, allowed
the same directing:
It
is the conceded position that the petitioner had received the benefit of
pension under the EPF scheme, but it is also the admitted position that the
amount which the petitioner would now receive on account of family pension will
be higher than the amount received by her under the EPF scheme.
Mr. Malik
accordingly undertakes that the petitioner will refund/ adjust the amount,
which she had already received towards the amount, which she will now receive
by way of family pension.
6. Mr.
Neeraj Kumar Jain, learned counsel appearing on behalf of the appellants, in
support of the appeal would submit:
(i)
Having regard to the Punjab Civil Services Rules, Volume 2 as applicable to the
State of Haryana, the impugned judgment is wholly
unsustainable.
(ii)
Respondents husband having been a member of the Contributory Provident
Fund, the Family Pension Scheme was not applicable in her case.
7. Mr.
Jasbir Singh Malik, learned counsel appearing on behalf of the respondent, on
the other hand, urged:
(i)
Appellants having not questioned the correctness of Kanta Devi (supra), now
cannot turn round and contend that the Family Pension Scheme is not applicable.
(ii)
The High Court in Kanta Devi (supra) having interpreted para 4 of the Family
Pension Scheme, the appellants are bound thereby.
8. The
State of Punjab made the Punjab Civil Services
Rules. The said Rules, subject to modifications, became applicable to the State
of Haryana.
Volume
2 of the said Rules inter alia provide for service qualifying for pension. Rule
3.12 thereof reads as under:
3.12
The service of a Government employee does not qualify for pension unless it
conforms to the following three conditions: - First The service must be under
Government.
Second
The employment must be substantive and permanent.
Third The
service must be paid by Government.
9.
Rule 3.17 of the Rules provides that in the case of an officer retiring on or
after 5th January, 1961, if he was holding substantively a permanent post on
the date of his retirement, his temporary or officiating service under the
State Government, followed without interruption by confirmation in the same or
another post, shall count in full as qualifying service except in respect of
the pension period of temporary or officiating service in non- pensionable
establishment.
10.
Rule 3.17-A(g) of the Rules inter alia provides that the entire service
rendered by an employee as work-charged shall be reckoned towards retirement
benefits provided:
(i) such
service is followed by regular employment;
(ii) there
is no interruption in the two or more spells of service or the interruptions
fall within condonable limits; and
(iii) such
service is a whole time employment and not part-time or portion of day.
[Emphasis
supplied]
11.
Indisputably, there exist two schemes; one in relation to Contributory
Provident Fund and another in relation to Pension. The Scheme of grant of
Family Pension is contained in Appendix 1 of the said Rules. Relevant portion
of Para 4 of the said Scheme reads as
under:
4.
This scheme is administered as below:-
(i)
The family pension is admissible in case of death while in service or after
retirement on or after the
1st July, 1964, if at
the time of death, the retired officer was in receipt of a compensation,
invalid, retiring or superannuation pension. The family pension will not be
admissible in case of death after retirement if the retired employee at the
time of death was in receipt of gratuity only. In case of death while in
service a Government employee should have completed a minimum period of one
year of continuous service without break.
Note
1. The term one year continuous service used in para-4(i) above is inclusive
of permanent/ temporary service in a pensionable establishment but does not
include periods of extraordinary leaves, boy service and suspension period unless
that is regularized by the competent authority or before completion of one year
continuous service provided the deceased Government employee concerned
immediately prior to his recruitment to the service or post was examined by the
appropriate Medical Authority and declared fit by that authority for Government
service. *** *** ***
(iii)
The pension is admissible:-
(a) in
the case of widow/widower upto the date of death or remarriage, whichever is
earlier; and (b) in the case of son/unmarried daughter until he/she attains the
age of 25 years.
12. Para 11 of the said Scheme excludes the applicability of
the scheme inter alia in relation to the work-charge staff. We may notice that
in Kanta Devi (supra) the husband of the appellant therein was in temporary
service.
Construing
Para 4(i) as also Note 1 appended thereto, the High Court held that as the
husband of Kanta Devi completed more than one year in temporary service, she
was entitled to family pension.
13. We
have noticed hereinbefore that Shri Krishan was a member of the Contributory
Provident Fund. It has furthermore been noticed by us that even before the High
Court the said position stood conceded but she opted for the Pension Scheme
only because thereby she considered herself to be entitled to a higher amount.
14.
The scheme relating to grant of Family Pension was made under a statute. A
person would be entitled to the benefit thereof subject to the statutory
interdicts. From a bare perusal of the provisions contained in the Punjab Civil
Services Rules, Volume 2 vis-`-vis the Family Pension Scheme, it would be
evident that the respondent was not entitled to the grant of any family
pension. Husband of the respondent was a work-charge employee. His services had
never been regularized. It may be unfortunate that he had worked for 11 years.
He expired before he could get the benefit of the regularization scheme but
sentiments and sympathy alone cannot be a ground for taking a view different
from what is permissible in law. [See Maruti Udyod Ltd. v. Ram Lal and Others,
(2005) 2 SCC 638, State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9)
SCALE 549, Regional Manager, SBI v. Mahatma Mishra, 2006 (11) SCALE 258, State
of Karnataka v. Ameerbi & Ors. 2006 (13) SCALE 319 and State of M.P. and
Ors. v. Sanjay Kumar Pathak and Ors. [2007 (12) SCALE 72] They statutory
provisions, as noticed hereinbefore, debar grant of family pension in favour of
the family members as the deceased employee if was a work-charge employee and
not a permanent employee or temporary employee. The period during which an
employee worked as a work-charge employee could be taken into consideration
only when his services are regularized and he becomes permanent and not
otherwise.
Furthermore,
there exists a distinction between a pensionable and non- pensionable
establishment. Shri Krishan being a member of a non- pensionable establishment,
Family Pension was not admissible. It is not a case where an employee had been
given an option to opt for one or the other schemes. Once a person had opted
for non-pensionable scheme, the question of his being entitled to pension or
for that matter his family members becoming entitled to family pension did not
and could not arise.
The
High Court only followed Kanta Devi (supra) without noticing the distinctive
features thereof. As it is not necessary, we have not gone into the question as
to whether Kanta Devi (supra) was correctly decided. Apart from the fact that
the fact therein was different, evidently the questions which have been raised
before us were not raised therein. The High Court, therefore, committed a
serious error in applying Kanta Devi (supra) to the fact of the present case.
15.
Mr. Malik contended that it has wrongly been stated in the list of dates that
the appeal against Kanta Devi (supra) has remained pending before this Court
and, thus, it being a mis-statement, the leave granted should be revoked. It
may be so but in a case of this nature this Court is required to lay down the
law. We do not, thus, intend to revoke the leave. However, we direct that any
benefit paid to the respondent should not be recovered.
16.
For the reasons aforementioned, the appeal is allowed with the aforementioned
directions. However, in the facts and circumstances of this case, there shall
be no order as to costs.
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