Loka Ram vs Haryana State Electricity Board and Another

Jawahar Lal Gupta, J.—The petitioner prayed for the issue of a writ in the nature of mandamus directing the respondents to consider his claim for the grant of pension after taking into account the period of service rendered by him on work-charge basis. A few facts may be noticed.

The petitioner joined the service of the Punjab State Electricity Board as T-Mate on work charge basis in the year 1957. On May 10, 1974, the petitioner was regularised as on Oil Cleaner (Shift Attendant). He retired from the service of the respondent-Board on August 31, 1983. He submitted representations for the grant of pension. The claim having been rejected by the authorities he has approached this Court through the present writ petition.

The respondent have filed a written statement. A copy is, however, not available on the record of this case. A copy of the written statement as now supplied by the learned counsel for the respondents is taken on record. A perusal of this written statement shows that the factual position is not disputed. However the petitioner''s claim has been contested inter alia on the grounds that the petition is belated and that the period of service rendered on work charge basis cannot be taken into consideration under the service bye-laws of the Board. It has also been averred that a person has to complete a minimum qualifying service of 10 years on regular basis so as to become eligible for the grant of pension. Since, the petitioner had not completed the requisite period of service on regular basis he is not entitled to the grant of pension.

Mr. S.K. Mittal, learned counsel for the petitioner relying on the judgment of a full Bench of this court in Kesar Chand v. State of Punjab (1988) 94 P.L.R. 223 has contended that the period of service on work charge basis has to be taken into consideration. The claim of the petitioner has been controverted by the learned counsel for the respondents.

Firstly, the plea of delay may be considered. Admittedly, the petitioner had retired from service in the year 1983 and had made a claim for pension. It was rejected vide letter dated May 19, 1988 on the ground that the total service rendered by him was 9 years 3 months and 22 days, and that the benefit of the ser-vice rendered in work charge capacity was not admissible. He represented again, Having failed to get a reply, the petitioner approached this Court through the present writ petition. In this situation, it cannot be said that the petitioner has become disentitled to the grant of pension. This is especially so in view of the fact that it is a continuing cause of action and even if the claim is not made immediately or within a reasonable time, it cannot be defeated by the mere lapse of time. No third-party''s right have come into existence. Delay does not prejudice the interest of the employer. If at all, it has kept the money which was required to be paid '' to the employees. The mere fact that the poor employee has not claimed the i money for a long time, does not mean that his right has since been extinguished. Consequently, the plea of delay cannot be accepted.

On merits, the sole defence raised on behalf of the respondents is that the petitioners is not entitled to the grant of pension in view of the service bye-laws. The relevant provision has not been reproduced in the written statement. Even the title of the Bye-laws has not been disclosed. In fact it has been conceded by the learned counsel for the respondents that the petitioner is governed by the provisions of the Punjab civil Service Rules. Still, further, it deserved mention that even in the case of Kesar Chand (supra), where the rules specifically provided that the period of service on work charge establishment shall not be counted, it was held that the provision was arbitrarily and violative of Article 14 of the Constitution. The claim of the petitioner is fully covered by the decision of the Full Bench of this Court in Kesar Chand''s case (supra). Consequently, it has to be accepted.

Mr. Kamal Sharma, learned counsel for the respondent-Board has contended that the rule having been struck down by the Full Bench on June 2, 1988, the petitioner became entitled to the pension only with effect from that date and he is not entitled to the payment of any arrears for the period prior thereto. This contention cannot be accepted. The Full Bench only declared the law and held the rule to be invalid. The declaration is not merely prospective. The rule has to be deemed to be void with effect from the date of its promulgation.

No other point has been raised.

In view of the above, the writ petition is allowed. The respondents are directed to fix the petitioner''s pension and redetermine the amount of gratuity due to him by taking into Consideration the period of service rendered by him on work charge basis. The needful shall be done within three months from the date of receipt of a copy of this order. If the payment as found due is not made to him within the aforesaid period, the petitioner shall be entitled to the payment of arrears with interest at the rate of 12 per cent from the date of accruel till the date of actual payment. He will also be entitled to his costs which as assessed at Rs. 2,000/-.