Full Judgment Text
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CASE NO.:
Appeal (civil) 907 of 2001
Appeal (civil) 908 of 2001
PETITIONER:
M.S. CHAWLA AND ORS.
Vs.
RESPONDENT:
STATE OF PUNJAB AND ANR.
DATE OF JUDGMENT: 18/04/2001
BENCH:
G.B. Pattanaik & B.N. Agrawal
JUDGMENT:
PATTANAIK,J.
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These appeals filed by the Presidents of the District
Consumer Forum, appointed under Section 10 of the Consumer
Protection Act, are directed against the judgment of Punjab
and Haryana High Court and the question for consideration is
whether the pension amount received by these appellants in
respect of their previous services as District Judges, can
be deducted from the salary of the President of the District
Consumer Forum, fixed under the provisions of the Consumer
Protection Act and the rules framed thereunder? The
appellants approached the High Court by filing a writ
petition, challenging the legality of the Government Order
dated 25th of January, 1996, by which order it had been
directed that the pension amount of each of these appellants
should be deducted from their salary, payable as President
of the District Consumer Forum. The High Court by the
impugned judgment, dismissed the writ petition, essentially
on the ground that the appellants knew while joining the
post of President, District Consumer Forum that the pension
amount received by them as Members of the Superior Judicial
Service would be deducted from their salary and, therefore,
they having joined the post with full knowledge and without
any protest, they do not have any enforceable right under
the provisions of the Act and the Rules, as contended.
Mr. P.P. Rao, the learned senior counsel, appearing
for the appellants, raised the following contentions in
assailing the impugned judgment of the High Court:
(1) The salary of the President of the District Consumer
Forum, having been fixed under Section 10(3) of the Consumer
Protection Act, 1986 (hereinafter referred to as the Act)
read with Rule 3(1) of the Consumer Protection Rules, 1987
(hereinafter referred to as the Rules) and there being no
provision for deduction of the pension, which such President
had been drawing in respect of the past services rendered,
the Government is not entitled to issue an Administrative
Order to that effect and, therefore, the Order directing
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deduction of pension is illegal. (2) Pension being neither
a bounty nor a matter of grace depending upon the sweet will
of the employer, as has been held by this Court in the
Constitution Bench decision in D.S. Nakaras case, the
right to receive pension by each of the appellants, is a
statutory right governed by the Punjab Civil Services Rules,
made under the proviso to Article 309, and in the absence of
any provision thereunder, the said pension cannot be
deducted from the salary provided for the President of the
District Consumer Forum under the Act and the Rules framed
thereunder. (3) In any view of the matter, the statutory
right of receiving pension for services rendered as District
Judges, cannot be taken away by an administrative order made
by the Governor. (4) The Consumer Protection Act and the
Rules framed thereunder, itself having provided the
conditions of service and having fixed the salary of the
President of the District Consumer Forum, the same cannot
be, in any manner altered by an administrative order.
In this view of the matter, the impugned Order dated
25.1.1996, is on the face of it illegal, inoperative and
null and void and must be struck down. Mr. Rao also
further contended that the conclusion of the High Court,
applying the principle of waiver and estoppel is wholly
untenable, since there is no question of waiver or estoppel
against any statute and the High Court committed error in
holding that the appellants knew about the condition that
the pension amount would be deducted from the
salary/honorarium payable to the President of the District
Consumer Forum.
Mr. A.G. Chaudhary, appearing for the State of Punjab,
on the other hand contended that Volume II of the Punjab
Civil Services Rules deal with the pension of an employee.
In Chapter VII of the aforesaid Punjab Civil Services Rules
of Volume II, Clause 7.18 enables the authority competent to
fix the pay and allowances of the post in which the
pensioner is re-employed to determine whether his pension
shall be held wholly or partly in abeyance. Note 3 of the
aforesaid provision, unequivocally stipulates that in
determining the pay of re-employed pensioner, the principle
to be followed is that the pay must not exceed the
substantive pay drawn immediately before retirement or the
maximum of the scale applicable to the post in which the
Government employee is re-employed whichever is less and
pension which is non-effective pay, shall not ordinarily be
allowed in addition. In view of the aforesaid provisions
and the appointment of the retired District Judges as
President of the District Consumer Forums being
re-employment, the appropriate authority was entitled to fix
their salary and fixation of their salary has been done by
the appropriate authority by issuing the Government Order
dated 25th January, 1996, and therefore, the said order is
within the powers conferred under the Punjab Civil Services
Rules and in consonance with the principles enunciated
therein. In this view of the matter, the High Court was
fully justified in not striking down the aforesaid
Government Order.
It is no doubt true, as contended by Mr. Rao the
learned senior counsel, appearing for the appellants that if
the emoluments attached to a post under any Act are fixed
under the Act, then by an executive order, the same cannot
be altered or determined contrary to the provisions of the
Act and the Rules. The District Forum is defined in
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Section 2(h) to mean a Consumer Disputes Redressal Forum
established under clause (a) of Section 9 of the Consumer
Protection Act, 1986. Section 9(a) makes it obligatory for
the State Government to establish a Consumer Disputes
Redressal Forum to be known as the District Forum in each
District of the State by a notification. Section 10(1)(a)
of the Act, provides that each District Forum shall consist
of a person who is, or has been, or is qualified to be a
District Judge, who shall be its President. Sub-section(3)
of Section 10 provides that the salary or honorarium and
other allowances payable to, and the other terms and
conditions of service of the members of the District Forum
shall be such as may be prescribed by the State Government.
Sub-section (2) of Section 30 enables the State Government
by a notification to make rules for carrying out the
provisions contained in Sub-section(3) of Section 10 along
with other provisions mentioned in the said sub-section.
Thus, the salary or honorarium and allowances payable to and
the terms and conditions of service of Members of the
District Forum could be prescribed by the State Government
by the rules framed for the purpose. In exercise of powers
under sub-section (2) of Section 30, the Government of
Punjab , Department of Food and Supplies (Consumer
Protection Branch), has made the Rules called the Consumer
Protection (Punjab) Rules, 1987. Sub-rule (1) of Rule 3
thereof prescribes that the President of the District Forum
shall receive the salary of the District judge of a District
Court if appointed on whole-time basis or an honorarium of
Rs.150/- per day if appointed on part-time basis and other
members, if sitting on whole-time basis, shall receive a
consolidated honorarium of Rs.2000/- per month and if
sitting on part-time basis, a consolidated honorarium of
Rs.100/- per day for the sitting. The aforesaid salary and
honorarium is defrayed out of the Consolidated Fund of the
State Government, as provided in sub-rule (3) of Rule 3.
These Rules of 1987, stood amended by Consumer
Protection(Punjab) Rules, 1993 by notification dated 2nd of
August, 1993. Under the amended Rules, the President of a
District Forum, if appointed on whole-time basis, is
entitled to pay in the grade of pay admissible to a Judge of
a District Court. Neither in the Act nor in the Rules
framed thereunder, there has been any indication as to
whether on being appointed as President of the District
Consumer Forum, after superannuation as a District Judge,
the pension receivable is to be deducted. The pension of
such superannuated District Judges is Governed by the Punjab
Civil Services Rules, Volume II.. Rule 1.1(a) of Punjab
Civil Services Rules Vol.II, unequivocally stipulates that
the Rules in this part regulate the grant of pensions to the
Government employees to whom the rules in Volume I of these
rules apply. The Punjab Civil Services Rules have been
issued by the Governor of Punjab under proviso to Article
309 of the Constitution. The Punjab Civil Services Rules
apply to all Government employees except those who are
specifically excluded from the operation of the Rules by a
general or special order of the competent authority.
Appendix (2) to the Rules contains a list of those employees
who have been excluded from the operation of the rules. The
expression State Government employees has been defined to
mean all persons whose conditions of service may be
regulated by the rules made by the Governor of Punjab under
proviso to Article 309 of the Constitution. It is
undisputed that the pension of a District Judge, on his
superannuation is determined in accordance with the Punjab
Civil Services Rules, Volume II. Chapter II of Volume II
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deals with general provisions relating to grant of pensions.
Section 2.1 thereof provides that every pension shall be
held to have been granted subject to the conditions
contained in Chapter VII of these rules. Chapter VII of
Volume II of the Punjab Civil Services Rules contains
Section 7.18, and the same is quoted herein below:
Section 7.18.- The authority competent to fix the pay
and allowances of the post in which the pensioner is
re-employed shall determine whether his pension shall be
held wholly or partly in abeyance. If the pension is drawn
wholly or in part, such authority shall take the fact into
account in fixing the pay to be allowed to him.
Note 3(a)(i) to aforesaid Section 7.18 is extracted
hereunder:
Note 3(a): In determining the pay of a re- employed
pensioner, the following principles shall be observed
namely:- (i) the pay must not exceed the substantive pay
drawn immediately before retirement or the maximum of the
scale applicable to the post in which the Government
employee is re-employed whichever is less and pension which
is non-effective pay, shall not ordinarily be allowed in
addition: Provided that if the pension does not exceed
Rs.50 p.m., the entire amount of pension and where it
exceeds Rs.50 per month the first Rs.50 shall not be taken
into account in fixing the pay on re- employment.
The appointment of a District Judge, after his
superannuation as the President of the District Consumer
Forum under the Consumer Protection Act, cannot but be held
to be a case of re-employment of a pensioner inasmuch as the
said District Judge is in receipt of a pension for the
services rendered as a District Judge in accordance with the
provisions contained in the Punjab Civil Services Rules,
Volume II. Since Section 2.1 of Chapter II of Volume II,
unequivocally states that every pension shall be held to
have been granted subject to the conditions contained in
Chapter VII and Chapter VII contains Rule 7.18 as well as
Note 3(a)(i), which have been extracted before, the
conclusion is irresistible that the appropriate authority
will have to decide the pay and allowances, which the
retired District Judge is entitled to receive on being
appointed as the President of the District Forum
notwithstanding the fixation of such pay under the Rules
framed under Consumer Protection Act and while fixing the
same, the principle underlined in Note 3(a)(i) has to be
followed. This being the position, we see no infirmity with
the Government Order dated 25th of January, 1996 and under
the said notification the salary of re-employed District
Judges as President of the District Consumer Forum, have
rightly been fixed, taking into account the pension, which
they are in receipt of, as retired District Judges. The
contention of Mr. Rao that the salary fixed under the Act
and the Rules framed thereunder is being altered by an
administrative order is of no force, in view of the legal
provisions enumerated above and in fact, it is the provision
of the Punjab Civil Services Rules, dealing with the salary
of re-employed pensioners, which governs the field. The
other contention on the basis of the judgment of this Court
in D.S. Nakara, that pension is not a bounty is also of no
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consequence. In the aforesaid premises, we do not find any
legal infirmity with the Judgment of the High Court,
requiring our interference under Article 136 of the
Constitution. These appeals accordingly fail and are
dismissed.
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