Daulat Ram vs The Haryana State Electricity Board and Others

V.K. Jhanji, J.—The petitioner joined Haryana State Electricity Board (for short the Board) as a Turner with effect from 1.11.1969 on work-charged basis. Board refused to regularise his services though the petitioner completed 20 years 8 months and 30 days service without any break as a work-charged employee. In order to seek regularisation, he filed Civil Writ Petition No. 10230 of 1991. The said writ petition was decided by a Division Bench consisting of Hon''ble Mr. Justice J. V. Gupta, Chief Justice and Hon''ble Mr. Justice R. S. Mongia on 1.8.1990 and the respondents were directed to decide the representation of the petitioner and pass appropriate order within six months from that day and status quo with regard to service of the petitioner was allowed to continue till his representation was decided.

Despite the order of the Division Bench, services of the petitioner were not regularised and he was not allowed to join duty. Consequently, the petitioner filed C. O. C. P. No. 718 of 1990 and the same was decided by Hon''ble Mr. Justice M S. Liberhan on 9.11.1990 on the basis of the undertaking given by the learned counsel for the respondents that they shall decide the case of the petitioner with respect to retrial benefits and deemed date of regularisation in accordance with law within three months.

In pursuance of the undertaking given in the above contempt petition, the respondents asked the petitioner to give his option as to whether he wants to retire at the age of 60 or 58 years. He was also informed that his services can be regularised with effect from 1. 1. 1988. In reply to this, the petitioner asked the respondents to regularise his services with effect from 1.11.1962, the date he joined service of the Board as work-charged employee. The respondents finally decided the case of the petitioner on 6.2.1991 on the basis of the advice of Legal Remembrancer of the Board that the services of the petitioner cannot be regularised with effect from 1.11.1969 as there is no such practice prevalent in the Board. Pension was denied to the petitioner on the ground that he was a member of the Employees Provident Scheme and therefore, he is not entitled to pension. Petitioner has impugned the order dated 6.2.1991 (Annexure P-1) in this writ petition.

In response to the writ petition, the respondents have filed written statement wherein they have taken a plea that there is no practice of regularising an employee from the date he joined the service of the Board on work-charged basis. The claim of the petitioner with regard to pension is also refuted on the ground that he was a member of the Employees Provident Fund Scheme and, therefore, he is not entitled to pension.

After hearing the learned counsel for the parties, I find that the order dated 6.2.1991 (Annexure P-1) passed by the respondents rejecting the claim of the petitioner for regularisation of his services with effect from 1.11.1969, the date when he joined the service of the Board as a work-charged employee and for not granting him pension on the basis that he was a member of the Employees Provident Fund Scheme, cannot be sustained.

Admittedly, the petitioner joined the service of the Board with effect from 1 11.1969 and in view of the decision in Kesar Chand v. State of Punjab (1988) 94 P. L. R. 223 (F.B.), he is entitled to pension and gratuity by calculating his entire length of service including the one he rendered as a work-charged employee. The very plea of the Board that before the services of the employee were regularised, he was a member of the Employees Provident Fund Scheme and therefore, he cannot be allowed to take benefit of the judgment in Kesar Chand''s case (supra) was negatived by a Division Bench of this Court in Civil Writ Petition No. 12457 of 1990, decided on 25.2.1991. The learned counsel for the respondents has not brought on record or to my notice any other judgment taking a contrary view.

Resultantly, I allow this writ petition and direct the respondents to calculate the pension and gratuity of the petitioner by taking into consideration his entire length of service from the date of his initial appointment till the date of retirement within four months from today and pay the arrears of pension, gratuity and other retiral benefits within two months thereafter. However, it is made clear that the excess amount, if any, paid to the petitioner under the Employees Provident Fund Scheme in preference to the regular employees by way of Provident Fund etc. shall be adjusted towards pension which he shall be entitled to after counting the period he served as a work-charged employee. The petitioner shall also be entitled to costs which are quantified at Rs. 1,000/-.