REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   7309        OF 2008 (Arising out of SLP (C) No.1796 of 2008)

Lajpat Rai Mehta … Appellant

Versus

Secretary to Government of Punjab, Department of Irrigation & Power, Chandigarh … Respondent

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against a judgment and order dated 31.7.2007

passed by a learned Single Judge of the High Court of Punjab and Haryana

at  Chandigarh  in  Civil  Revision  Petition  No.2764  of  2006  whereby and

whereunder the Civil Revision Application filed by the respondents herein

was allowed setting aside an order dated 9.2.2006 passed by learned Civil

Judge, Junior Division, Amritsar.   

3. Appellant herein joined the Irrigation and Power Department of the

State of Punjab as a Draftsman in March 1959.  He was later on promoted to

the post of Head Draftsman.  It appears that the appellant had remained on

long leave in the years 1976 to 1980.  On or about 8.4.1981, although he

proceeded  on  earned  leave  for  23  days,  admittedly  remained  on

unauthorized leave thereafter.  He was not allowed to join his services later

on.  He did not join his duties till he retired from service on 30.9.1994.  He

filed a suit for permanent injunction restraining the State from interfering

with his discharge of duties.  The said suit was dismissed.  Thereafter he

filed another suit for declaration that he was entitled to retrial benefits for

the post of Head Draftsman in the shape of pension, general provident fund,

ex gratia payment, leave encashment, group insurance schemes etc.   

4. Indisputably, the scale of pay of the employees of the State of Punjab

were  revised  in  terms  of  the  recommendations  of  the  Fourth  Pay

Commission with effect  from 1.1.1986 by a notification dated 21.7.1988.

The aforementioned suit of the appellant was dismissed holding that he was

not entitled to any retrial  benefit.  The appellate court, however, reversed

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the said finding of the learned trial judge by a judgment and order dated

8.8.2000, opining :

“I have reached at the conclusion that the learned lower court has erred in declining the pensionary benefits to the appellant/plaintiff assuming that the absence  of  an  employee from duty is  automatic. Findings on issue No.1, 2 and 3 are set aside and the  appellant/plaintiff  is  ordered  to  be  given pensionary benefits for the qualifying service, he has put in while in service, under the respondents. The question like leave encashment benefit  shall be duly taken care of by the respondents.  If he did not have any earned leave at his credit, that benefit of course be declined to him.

The  suit  filed  by  the  appellant  before  the lower  court  is,  therefore,  decreed  and  he  is declared  entitled  to  pensionary benefits,  as  if  he has  put  in  the  required  qualifying  service excluding the period of his absence.”

5. An application for execution of the said decree was filed before the

Executing Court.  Respondent filed an objection therein under Section 47 of

the  Code  of  Civil  Procedure  contending  that  the  retiral  benefits  of  the

appellant  would  be calculated  on the basis  of  the  last  pay drawn by the

appellant  in  1981.   The  said  objection  was  rejected.   As  noticed

hereinbefore, the Civil Revision Application filed by the State thereagainst

has been allowed by reason of the impugned judgment.   

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6. Before us, the State has placed a letter dated 19.9.2003 issued by the

Irrigation  Department  and  addressed  to  the  Chief  Engineer  (Canals)

Irrigation  Works,  Punjab giving guidelines  for  computation  of  the retiral

benefits of the appellant which reads as under :

“1. Sh. Lajpat Rai Mehta, D.H.D. may be paid pensionary  benefits  after  excluding  the absence period, although i.e. before or after 5/1981.   He may not  be  paid  benefits  for absence period.

2. He may be paid pensionary benefits on the average  emoluments  drawn by him during ten months before 30.4.1981.

3. The  retiree  will  be  admissible  for  pension after  the  date  of  his  superannuation  i.e. 30.9.1994.

4. The matter may be investigated that why no action  has  been  taken  by you in  13  years when Sh. Lajpat Rai Mehta remained absent and  Government  have  to  bear  additional financial  liability.  The complete report be sent to the Govt. within two months.  This concurrence  is  conveyed  as  per  Financial Promotion Policy and coordination Section Department of Finance letter No.1/66/2003- iFPPC/7702 dated 18.9.2003.”

7. Appellant, however, contends that he would be entitled to the benefit

of the revised pay and, thus, the pensionary benefits should be calculated on

the following basis :

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“PAY AS ON 3.4.1981 = Rs.880/- Pay on 1.1.1986 = 2000 3.4.86 =  2060

NOTIONAL PAY ON 1.1.1986 3.4.87 = 2130 3.4.88= 2000

Basic Pay = Rs.880.00 3.4.89 = 2270 D.A. = Rs.717.00 3.4.90 = 2340 Interim Relief = Rs.132.00 3.4.91 = 2410 2nd Relief 10% = Rs.  88.00 3.4.92 = 2480

  _________ 3.4.93 = 2550    Rs.1818.00 3.4.94 = 2625    _________”

PAY IN THE REVISED SCALE AS ON 1.1.1986 (Rs.2000-60-2060-70-2570-75-3000-100-3500)

Date of Birth = 10.9.1936

Date of Appointment = 22.3.1957

Date of Retirement = 30.9.1994

Total Service = 37 years 6 months 10 days

Absent Period (1.5.81 to 30.9.94 = 13 yrs. 5 months 0 days

Net qualifying Service = 24 years 1 month 10 days = 24.11 years   2625 x 48.22

Pension as on 30.9.1994 = Rs. --------------------------- Rs.959.00                          2 X 66

Revised pension as per   B/Pay  +   DA    +  Interim Relief I.R.(10%) Service 959         1304                 75          BP           

  96

= 2242/-

Revised Pension w.e.f. 1.1.1996    = 2817.00 (Against Rs.2242)”

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8. Mr.  Vikas  Mahajan,  learned  counsel  appearing  for  the  appellant,

would  submit  that  having  regard  to  the  directions  issued  by  the  first

appellate  court,  there  cannot  be  any doubt  whatsoever  that  the appellant

having been allowed to retire with effect from 30.9.1994 and only the period

during  which  he  was  on  unauthorized  leave  having  been  directed  to  be

excluded, all other benefits which were available to him as on the date of

retirement should form the basis for calculating the pensionary and other

retiral benefits payable to him.

Strong reliance in this behalf has been placed on  State of Kerala &

Anr. v. P.V. Neelakandan Nair & Ors. [(2005) 5 SCC 561].

9. Mr.  Ajay  Pal,  learned  counsel  appearing  for  the  State,  however,

supported the impugned judgment.

10. Indisputably,  the  appellant  was  on  unauthorized  absence  from

30.4.1981 to 30.9.1994.  The suit, which as noticed hereinbefore, centered

round the question as  to  whether  he would be entitled to  the pensionary

benefits  keeping  in  view the  fact  that  he  had  worked  for  the  qualifying

period specified therefor.  In the said suit, the question as to the basis on

which  the  pensionary  benefits  shall  be  calculated  did  not  arise  for

consideration.  It is one thing to say that a person is entitled to pensionary

benefits  having fulfilled  the eligibility  criteria  laid  down in  the  statutory

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rules but it is another thing to say as to on what basis the said benefit should

be reckoned.

11. Appellant  was  not  drawing  any  salary  on  the  date  of  his

superannuation.  As the State omitted to take any disciplinary proceedings

against  him, he obtained the benefit  of  grant  of  pension.   Remaining  on

unauthorized leave  for  such a long time is  a misconduct.   The  appellate

court declared his entitlement to obtain the pensionary benefits only because

he was allowed to superannuate on 30.9.1994.   

12. The declaratory relief granted by the appellate court, therefore, could

not have extended grant of other benefits to which the appellant  was not

otherwise  legally  entitled  to.   The  Rules  prevalent  for  calculation  of

pensionary benefits were, therefore, required to be followed.   

13. Appellant as noticed hereinbefore, had not worked for 13 years.  The

last  pay  was  drawn  by  him in  the  year  1981.  The  pensionary  benefits,

therefore, should be calculated only on that basis.  He, having not worked,

cannot be held to have earned increments or benefit in the revision of scale

of pay.   

In any event in view of the conduct of the appellant, we do not think

that this Court should exercise its discretionary jurisdiction in his favour.  It

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is  now a well  settled  principle  of  law that  this  Court  under  Article  136

and/or 142 of the Constitution need not grant relief to a litigant, although it

may be lawful  for  it  to  do  so.  {See  C.K. Prahhalada & Ors. v.  State  of

Karnataka & Ors. [2008 (8)  SCALE 600];  and  Tanna and Modi v.  CIT,

Mumbai [2007  (8)  SCALE  511]}.  The  Court  while  exercising  its

discretionary jurisdiction is entitled to see the conduct of the parties so as to

enable it to adjust equities.  It is also the duty of the Court to see that the

public exchequer should not unnecessarily be depleted despite the fact that

the  State  has  failed  and/or  neglected  to  initiate  disciplinary  proceeding

against the appellant.    

14. For the reasons aforementioned no relief can be granted in favour of

the appellants.  

15. The appeal is dismissed.  No costs.  

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Cyriac Joseph]

New Delhi; December 16, 2008

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