JUDGMENT

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 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.

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 retrial 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 Financ