STTE OF PUNJAB & ANR.versusH.B. MALHOTRA

                      STATE OF PUNJAB & ANR.                                     A
                                 v.
                          H.B. MALHOTRA

                              MAY 12, 2006

                [S.B. SINHA AND P.P. NAOLEKAR, JJ.]                              B
     Service Law:

      Punjab Civil Service Rules, 1969; Rule 592: Employee-Disciplinary
proceedings against-Employee offering to retire voluntarily on ground of
health-Acceptance of offer by employer-Disciplinary proceedings                  c
dropped-Non-payment of retiral benefits-Challenge tcr-High Court
directing the employer to release the benefits-On appeal, Held: Once
disciplinary proceedings were dropped against the employee even if offer of
voluntary retirement not accepted, he would be deemed to be continuing in
service till he reaches the age of superannuation-Hence, he is entitled to
full retiral benefits-State to pay all such benefits to him-Directions issued.   D

     The respondent was an employee of the State of Punjab. Disciplinary
proceedings have been initiated against him. During the pendency of the
proceedings, he offered to retire voluntarily from the services on
account of his ill-health. Accepting the offer, the disciplinary proceeding
                                                                                 E
was dropped against him by the authorities. However, his retiral
benefits were not released. He filed a writ petition before the High
Court. The High Court directed the authorities to release all the retiral
benefits including pension to the respondent. A review petition filed by
the employer-State was dismissed by the High Court. Hence the present
appeal.                                                                          F
     Appellant-employer contended that the High Court has failed to
take into consideration the fact that the respondent was not eligible to
obtain the retiral benefits pursuant to or in furtherance of his offer of
voluntary retirement; that the Voluntary Retirement Rules were not in
force at the relevant time; and that the respondent did not complete the
                                                                                 G
qualifying period of service;

      Dismissing the appeals, the CoiI'rt

      HELD : No contention was raised by the appellant before the High
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                                     391
    392                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.


A   Court 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 this Court 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
B   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
C   to or in furtherance of the offer made by it before the High Court.
    Hence, in the peculiar facts and circumstances of this case, it is not
    proper to interfere with the judgment of the High Court. (396-B-C-DI

         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5025-5026
    of 2005
D
         From the Final Order 2.2.2004 and 23.7.2004 of High Court of Punjab
    & Haryana at Chandigarh in C.W.P. No. 14907/2002 and R.A. No. 119/2004
    in C.W.P. No. 14907 of 2002

        Ms. Kawaljit Koohar, D. Jha, Adv., for Arun K. Sinha, Adv., for the
E   Appellants

          Respondent-in-person (NP)

          The Judgment of the Court was delivered by

F        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.14907/200:2. 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.
G
          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
H   voluntarily from the services on account of his health problems. Accepting
                 STATE v. H.B. MALHOTRA [SINHA, J.]                       393

the said offer, the said disciplinary proceeding was dropped. The respondent,     A
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       B
         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."                                 c
     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:
                                                                                  D
         "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 oftime 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     E
         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 :                                                                       F
         "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     G
         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.
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    394                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A            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
B            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."

c Director,
       A review application, supported by an affidavit affirmed by the
            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
    ofretiral 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
D   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
E            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-
F            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.
G            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 2.22004."

         The High Court issued a further direction as contained in its earlier
H   order datt:d 2.2.2004, to be complied with within a period of two months
                 STATE v. H.B. MALHOTRA [SINHA, J.]                       395

from the said date. The appellants are thus before us.                             A
       Ms. Kawaljit Kochar, learned counsel appearing on behalf of the
appellants submitted that the High Court committed a serious error in
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        B
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       C
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           D
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         E
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     F
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.
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      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     H
    396                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

    to contend that a contention had indeed been raised before the High Court
A
    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
B   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
c   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,
D   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
E   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.

F        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
G   80 years by now.

         Therefore. the State should bear and pay the costs of the respondent
    which is quantified at Rs. I 0,000 It is directed accordingly.

    S.K.S.                                                     Appeal!> dismissed
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