Tarlok Singh vs Guru Nanak Dev University and Another

Mahesh Grover, J.—The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India and prays for issuance of appropriate directions for release of his retiral dues, in particular, gratuity and leave encashment. The petitioner initially worked with the respondent-University as a Clerk w.e.f. 1971. He was promoted as an Assistant and confirmed as such in the year 1984. While working as such, he faced disciplinary proceedings and on 30.1.1997, a punishment of reduction in rank was inflicted upon him. As a consequence thereof, he was treated as a Clerk and on the very next day i.e. 31.1.1997, he superannuated.

The respondents have released the pension regarding which there is no dispute but insofar as the gratuity and leave encashment are concerned, they have not been paid to the satisfaction of the petitioner.

The respondents in their reply have stated that the Punjab State Civil Service Rules are applicable and govern the principles regarding release of gratuity etc. They have appended the Finance Department''s Circular dated 16.7.1998 appended to their reply as Annexure R-2, which defines emoluments, average emoluments and the manner in which gratuity is to be calculated. For the purposes of reference, clauses 2.1, 2.2 and 5.3 are extracted herein-below:--

2.1 The term ''Emoluments'' for the purpose of calculating various retirement and death-cum-retirement benefits shall mean Basic Pay, Personal Pay, if any, and non-practising allowance, in the revised scales promulgated under the Punjab Civil Services (Revised Pay) Rules, 1998, as amended from time to time.

2.2 The average emoluments shall be determined on the basis of the emoluments (as defined in Para 2.1 above) drawn during the last ten months of service.

2.3 to 5.2 xxxx

5.3 For the purpose of calculating the retirement-cum-death gratuity, Dearness Allowance admissible to a Govt. employee on the date of his retirement or on the date of his death shall also be treated as emoluments along with the emoluments as defined in para 2.1 above.

During the course of arguments, learned counsel for the respondents has also referred to the provisions of Punjab Civil Service Rules, in particular, the provisions which are extracted above.

With great emphasis, learned counsel for the respondents refers to clause 6.16(3) to say that the amount of gratuity has to be one-fourth of the emoluments of the officer for each completed six monthly period of qualifying service subject to a maximum of fifteen times the emoluments.

In fact what he wants the Court to infer is that since the petitioner stood reduced in rank on the day of his retirement, his emoluments would have to be construed on the basis of the basic pay which he was drawing on the date of his retirement.

After hearing the learned counsel for the parties, I am of the view that the reasoning adopted by the respondents to calculate the gratuity of the petitioner is not justified. Clause 2.1 would indicate that the death-cum-retirement benefits mean basic pay, personal pay (if any) and non-practising allowance in the revised pay-scales.

It would, thus, necessarily means that the emoluments would essentially be based on the basic pay and if the definition of pay is to be seen, that means the amount drawn monthly by a Government employee. Rule 2.44(a)(i) of the Punjab Civil Service Rules is extracted hereinbelow:--

2.44(a).

Pay means the amount drawn by a Government employee as:--

i) The pay, other than special pay or pay granted in view of his personal qualification which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre.

At this stage, it would also be necessary to briefly advert to clause 5.3 of the Circular which has been extracted above, which means that the gratuity has to be treated "as an emolument along with the emoluments defined in paragraph 2.1 above."

Thus, it is the word "emolument" which has to be construed to understand as to what are the benefits admissible to the petitioner in terms of gratuity.

Evidently, emoluments mean basic pay which further means the amount drawn monthly by a government employee. The petitioner, who was reduced in rank only for one day, cannot be construed to be drawing this pay for the entire month. If such an interpretation is accepted, then it would amount to a complete fraud to deprive a person to his legitimate dues. After having suffered the punishment for one day, it cannot be held that the petitioner had drawn the pay for one month as a Clerk.

Evidently, the petitioner continued to draw the pay as an Assistant except for one day of the month. Therefore, in the considered opinion of this Court, the petitioner was entitled to the gratuity to be calculated on the basic pay which would mean the pay of an Assistant and not that of a Clerk.

Similarly, for the purposes of calculating the leave encashment, which is also dependent on the pay admissible on the day of retirement, I am of the view that similar logic, as expressed above, should prevail over the interpretation placed by the respondents if one is to avoid a situation of complete fraud. The petition is allowed in above terms. The respondents are directed to release the benefits to the petitioner as expeditiously as possible, preferably within a period of four months from the date of receipt of certified copy of the order. The petitioner shall also be entitled to interest @ 7% per annum, to be calculated from the date when it became due to him till the date of payment.