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CASE NO.: Appeal (civil)  5025-5026 of 2005

PETITIONER: State of Punjab and Anr.

RESPONDENT: H.B. Molhotra

DATE OF JUDGMENT: 12/05/2006

BENCH: S.B. SINHA & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

S.B. SINHA, J. The State of Punjab is before us being aggrieved by and dissatisfied  with the judgment and order dated 2.2.2004 passed in C.W.P.  No.14907/2002 as also the order dated 23.7.2004 passed in  R.A.No.119/2004 in C.W.P. No.14907/2002, whereby and whereunder it  refused to review the said orders.

The basic fact of the matter is not in dispute.  

The respondent herein was an employee  of the State of Punjab. A  disciplinary proceedings is said to have been initiated against him. During  the pendency of the said proceedings he expressed his intention to retire  voluntarily from the services on account of his health problems. Accepting  the said offer, the said disciplinary proceeding was dropped. The  respondent, however, was not paid his retiral benefits. He filed a writ  petition before the Punjab and Haryana High Court which was marked as  C.W.P. No.14907/2002. The High Court on 24.7.2003, passed the following  order :

"Mr. Karan Singh, Director, Public Relations,  Government of Punjab is present in Court.  He has  assured the court that he would look into the matter  personally and pass appropriate order as expeditiously  as possible and would also keep in mind the sickness  of the petitioner.

               At request adjourned to 25.9.2003."

Pursuant to or in furtherance of the said order the Director,  Information & Public Relations, Punjab, by an order dated 18.9.2003  accepted the respondent’s offer for voluntary    retirement from service  w.e.f. 5.6.1969 (A.N.) stating:  

"The disciplinary proceedings have been ordered to be  dropped vide order No. OR(Estt.1) 03/6412-14 dated  22.9.2003 keeping in view his old age and efflux of  time in deciding the issue. He never joined duty after  proceeding on leave on 6.6.1969 as such the date on  which he last attended the office is to be construed as  his last day of working in the Department i.e. 5.6.1969.  Consequently complaint orders are passed for  voluntary retirement from service w.e.f. 5.6.1969  (A.N.) as per his request dated 21.11.1969."

On February 2, 2004, the High Court passed the impugned order  directing :

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"Despite the fact that the aforesaid order was passed  on 18.9.2003, learned counsel for the respondents  acknowledges that no payment has been made to the  petitioner. He further states that the petitioner himself  had made a request that his retiral benefits be  deposited in the Chief Minister’s Relief Fund.

It stands acknowledged that no payment has been  made to the petitioner till date primarily on account of  the fact that pension papers have not been signed by  the petitioner.

In view of the above, the respondents are directed to  have the pension papers signed by the petitioner within  one week from today. Keeping in account his  advanced age, the respondents are requested to get the  papers signed from the petitioner by not requiring him  to attend the office. Having  got the papers signed the  respondents are directed to release all retiral benefits  including pension etc. to the petitioner within four  weeks from today.  Pensionary benefits shall, however,  be limited to a period of three years and two months  preceding the date of filing of the writ petition. We  also hereby clarify that the instant writ petition was  filed on 13.9.2002."

A review application, supported by an affidavit affirmed by the  Director, Information & Public Relations, Punjab, was filed in the High  Court alleging that the respondent herein did not satisfy the mandatory  provisions of Rule 592 of the Punjab Civil Service Rules, 1969, for grant of  retiral benefits to him, which were, in any event, not applicable in the case  of the respondent. The said review application was also dismissed by the  High Court holding:

"It is not a matter of dispute that the non- applicant/petitioner did not discharge duties w.e.f.  23.4.1969, no action under Punjab Civil Service Rules,  was taken against him although a department enquiry  was commended against him which we were informed,  was later on dropped suo motu. In the aforesaid  circumstances, we are satisfied that the respondent must  be deemed to have accepted the medical infirmity of the  Non-applicant/petitioner to discharge his duties. Thus  viewed even if an order was passed under wrong  statutory rules, there was sufficient scope the claim of  the non-applicant/petitioner for retirement on medical  grounds. In the facts and circumstances of this case  obvious from the plight of the non-applicant/petitioner  who has appeared before us in person we are satisfied  that the ends of justice would be met if the order of  voluntary retirement passed by the Director, Information  & Public Relations, Punjab, in favour of the non- applicant/petitioner w.e.f. 5.6.1969 is treated as under  retirement on medical grounds. In the circumstance  noticed above, the petitioner shall be entitled to  pensionary benefits, as directed by us in our order dated  2.2.2004."   

       The High Court issued a further direction as contained in its earlier  order dated 2.2.2004, to be complied with within a period of two months  from the said date. The appellants are thus before us.

       Ms. Kawaljit Kochar, learned counsel appearing on behalf of the  appellants  submitted that the High Court committed a serious error in

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passing the impugned judgment in so far as it failed to take into  consideration the fact that the respondent herein was not eligible to obtain  the retiral benefits pursuant to or in furtherance of his offer of voluntary  retirement made in the year 1969, and also in view of the fact that the  Voluntary Retirement Rules were not in force at the relevant time. In any  event, the respondent did not complete the qualifying period of service.  

       The pleas raised before this Court by the counsel were available to  the appellants in the writ petition. But as noticed hereinbefore, the   Director, Information & Public Relations, Punjab, itself made a  representation in the Court that he would look into the matter personally  and pass appropriate orders as expeditiously as possible keeping in mind  the fact that the respondent herein was not keeping well. He being the  Head of the Department and thus a responsible officer, was expected to  know the consequences of making such representation before a superior  Court. It is not in dispute that the appellant No.2 himself has passed an  order on 18.9.2003 accepting the offer of voluntary retirement made by the  respondent w.e.f. 21.11.1969. Even if the said order was passed by way of  a mistake, the least which could be done by the said authority was to recall  the said order after complying with the principles of natural justice. Not  only such an action was not taken, an order was allowed to be passed by  the High Court on 2.2.2004 without making any endeavour whatsoever to  get the purported mistake corrected.   

       It is stated before us that such a contention had been raised in the  counter affidavit filed on behalf of the State in the writ petition before the  High Court as also at the hearing thereof. On perusal of the judgment of  the learned Single Judge of the High Court, we do not find that such a  contention was raised. If the High Court had failed to take into  consideration any submission made before it, in view of the well-settled  principle of law,  the remedy of the appellants was to approach the High  Court.  

               A review petition indeed was filed but therein also no such  contention was raised that the disciplinary proceedings having been  initiated against the respondent, the respondent was otherwise not entitled  to any retiral benefits. In fact, as noticed hereinbefore, the said disciplinary  proceedings have rightly or wrongly been dropped. It is, therefore,  not  open for the appellants to contend that a contention had indeed been raised  before the High Court in the review proceedings. In any event, the same  could not have been entertained by the High Court as the said question has  not been raised in the writ petition.

       We have noticed hereinbefore that a voluntary statement was made  by  appellant  No.2 and the High Court proceeded on that basis. We also do  not find that any contention was raised before the High Court that in terms  of the extant rules the respondent was not entitled to pension and/or other  retiral benefits. It has not been explained before the High Court or for that  matter before us, as to why no action was  taken on the offer made by the  respondent and why the disciplinary proceedings had been dropped. If the  disciplinary proceedings as against the respondent were dropped and that  the offer of voluntary retirement had not been accepted, he would be  deemed to be continuing in service till he reached the age of  superannuation; the logical consequence whereof could be that he would  be entitled to the full retiral benefits which were payable to him in  accordance with law. The State, therefore, will have to pay the retiral  benefits to which the respondent was entitled to pursuant to or in  furtherance of the offer made by it before the High Court.  

       We really do not appreciate the manner in which the State took the  judicial process for a ride.  We may place on record that a Division Bench  of this Court by order dated  8.8.2005 had directed that the G.P. Fund  should be paid to the respondent within a period of four weeks from the  said date.  Learned counsel appearing for the State of Punjab could not  inform us whether that amount has been paid to the respondent or not.

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       In the peculiar facts and circumstance of this case, we do not think  it proper to interfere with the judgment of the High Court. The appeals are  dismissed. The respondent, who was appearing in person, was present in  Court for a few days but he was not present on the day when the matter  was taken up for hearing. The High Court has noticed that he is very aged,  about 80 years by now.  

       Therefore, the State should bear and pay the costs of the  respondent which is quantified at Rs.10,000/-. It is directed accordingly.