Patna High Court - Orders
Bihar State Electricity Board vs Anil Kumar Srivastava & Ors on 11 October, 2012
Author: R.M. Doshit
Bench: Chief Justice, Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.496 of 2011
In
Civil Writ Jurisdiction Case No. 12426 of 2003
With
Interlocutory Application No. 2198 of 2011
In
Letters Patent Appeal No. 496 of 2011
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Bihar State Electricity Board through its Secretary having Head Quarters at
Vidyut Bhawan, Bailey Road, Patna.
.... .... Respondent no. 1/Appellant
Versus
1. Anil Kumar Srivastava S/O Late Bankey Bihari Srivastava, Village-
Barki Dhawari, P.O. Sahajitpur, P.S. Baniyapur, District Saran, a retired
Deputy Director of Personnel, Bihar State Electricity Board, Patna.
...... Petitioner Respondent no. 1
2. The State of Bihar through its Secretary no. 1, Cooperative Department,
Government of Bihar, Patna having office at New Secretariat, Patna.
..... Respondent No. 5- Respondent No. 2
3. The Chairman, Bihar State Electricity Board, Vidyut Bhawan, Bailey
Road, Patna.
..... Respondent No. 2- Respondent No. 3
4. The Director, Bihar State Electricity Board, Vidyut Bhawan, Bailey
Road, Patna.
..... Respondent No. 4- Respondent No. 5
======================================================
Appearance :
For the Appellant : Mr. Subhash Kishore Verma, Advocate.
For the Respondent No.1: Mr. Vivek Prasad, Advocate.
For the Respondents-State: Mr. Vikash Kumar, A.C. to AAG 1.
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
C.A.V. Judgment
(Per: HONOURABLE THE CHIEF JUSTICE)
8 11-10-2012Re. Letters Patent Appeal No. 496 of 2011:
Feeling aggrieved by the judgment and order dated 24th August 2010 passed by the learned single Judge in CWJC No. 12426 of 2003, the respondents Bihar State Electricity Board (hereinafter referred to as „the Board‟) and others have preferred this Appeal under Clause 10 of the Letters Patent.2 Patna High Court LPA No.496 of 2011 (8) dt. 11 -10-2012
2 / 11 The respondent-writ petitioner joined the service under the State of Bihar in 1970. Under order dated 12 th August 1970, the writ petitioner was appointed as a Local Auditor under the Joint Registrar, Cooperative Societies, Bihar, Patna. While he was employed as Local Auditor, pursuant to the public advertisement issued by the Board, the writ petitioner applied for appointment as a Labour Welfare Officer under the Board. After going through the selection process, under Notification dated 14 th July 1976, the writ petitioner was appointed as a Labour Welfare Officer with effect from 5th June 1976. Pursuant to his appointment as a Labour Welfare Officer in the Board, under letter dated 3rd June 1976 issued by the Additional Registrar (Audit), Cooperative Societies, Bihar, the petitioner was ordered to be relieved and his lien under the State Government was terminated. Pursuant to the said order, the District Audit Officer, under his order dated 4th June 1976, relieved the writ petitioner from the office to join as Labour Welfare Officer under the Board. Since his appointment in June 1976, the writ petitioner continued to serve under the Board till, on reaching the age of superannuation, he was retired from service on 31st July 2003. On his retirement from service, he has been allowed the pension and the other terminal benefits on the basis of 27 years‟ qualifying service rendered by the writ petitioner under the Board.
Feeling aggrieved, the writ petitioner approached this Court under Article 226 of the Constitution in above CWJC No. 12426 of 2003. According to the writ petitioner his service under the State Government and under the Board was continuous. His service under the State Government was not terminated; nor had he resigned from the Government service. The six years‟ service he rendered under the State Government was pensionable. He was, 3 Patna High Court LPA No.496 of 2011 (8) dt. 11 -10-2012 3 / 11 therefore, entitled to the pension and other terminal benefits on the basis of the total service of 33 years‟ from 1970 to 2003. The writ petitioner prayed that his pension and gratuity be computed keeping in view the 33 years‟ service rendered by him, in accordance with the Bihar Pension Rules read with Government of India Memorandum dated 29th August 1984 and the Board‟s Resolution No. 483 dated 14th February 1992.
The petition was contested by the Board. According to the Board, the Board was not liable to pay pension or other benefits to the writ petitioner for the service rendered by him under the State Government. Neither the Bihar Pension Rules nor the Board‟s Resolution dated 14th February 1992 envisages such benefits for the employees of the Board.
The learned single Judge has held that the employees of the Board were governed by the Bihar Pension Rules, 1950 and the Government of India Memorandum dated 29th August 1984. The learned single Judge has held that the writ petitioner had not resigned from the service of the State Government. The termination of lien in the Government service did not amount to severance of master and servant relationship between the State of Bihar and the writ petitioner. The writ petitioner, therefore, did not forfeit his right to pension as provided under Rule 101(a) of the Bihar Pension Rules. The learned single Judge has considered the Rules 101 (a) and 134 of the Bihar Pension Rules, the aforesaid Memorandum dated 28th August 1984 and the Resolution dated 14th February 1992. The learned single Judge has held, "a beneficial legislation is to be liberally construed to cover all such cases which fall within the object of the legislation unless the extension of benefits infracts the very object of the legislation. The writ petitioner having served the State 4 Patna High Court LPA No.496 of 2011 (8) dt. 11 -10-2012 4 / 11 Government for six years, his service cannot be rendered waste. He has to be properly compensated more particularly since he did not resign from the Government service". In view of the said findings recorded by the learned single Judge, the learned single Judge has allowed the writ petition. The Board has been directed, "to extend the benefit of the circulars under consideration to the petitioner by treating the service rendered by him under the State Government for the period 12.8.1970 up to 4.6.1976 as qualifying service for the purpose of recalculation of his pension and other pensionary entitlements and payment of his arrears. The Board shall calculate the amount payable by the petitioner for deriving such benefits in terms of the stipulation present at Paragraph-3(i) of the Circular dated 14.2.1992 inclusive of interest and which shall have to be deposited by the petitioner for deriving the benefits within a reasonable time to be provided by the Board after having worked out the calculations".
Feeling aggrieved, the Board has preferred this Appeal.
We have heard the learned advocates extensively. Mr. Vivek Prasad, the learned advocate appearing for the writ petitioner has relied upon the judgment of the Hon‟ble Supreme Court in the matter of R. L. Marwaha V. Union of India and Others [(1987) 4 SCC 31].
As the question is that of clubbing the earlier service rendered by the writ petitioner under the State Government with the service rendered under the Board, we shall first examine the statutory and other provisions relevant to the issue.
Since its establishment, the Board had, as early as on 10th April 1958, passed a Resolution that "until the Board has 5 Patna High Court LPA No.496 of 2011 (8) dt. 11 -10-2012 5 / 11 framed its own regulations Under section 79(c) of the Electricity (Supply) Act, 1948, the rules of the Bihar Service Code, the Bihar T.A. Rules, the Discipline and Appeal Rules, the Conduct Rules and the Medical Attendant Rules as normally apply to Bihar Government servants, shall apply mutatis mutandis to all categories of officers and staff of the Board".
On that very date the Board also adopted the financial rules and procedural rules of the State Government. Since then, the Board has, in exercise of power conferred by Section 79(c) of the Electricity (Supply) Act, 1948, framed the Bihar State Electricity Board Service Regulation, 1976 (hereinafter referred to as „the Regulations‟). Regulation 2 (xxxviii) thereof defines the word "Pension". Regulation 2(xxxix) defines the words "Pensionable Service" to mean "the service which qualifies the employee to receive pension from the Board or any of its establishments including Area Boards and Generation-cum- Transmission Organisation". Regulation 75 thereof provides for "Terminal benefits". Clause (iv) of Regulation 75 reads as under:
In case of permanent Government servants, who have been seconded by the Electricity Department of the State Government to the Board and who have opted for being absorbed in the service of the Board, the Board may pay them gratuity, pension or Contributory Provident Fund as the case may be from its own funds taking into account the service such employees have rendered with the State Government as duty. The Board may, however, subject to the State Government agreeing, claim, in all such cases, from the State Government an amount equal to pension contribution and leave salary contribution in respect of the period of duty rendered by such 6 Patna High Court LPA No.496 of 2011 (8) dt. 11 -10-2012
6 / 11 officers/staff under the State Government:
Provided, however, that such employees shall raise no claim for terminal benefits against the State Government".
On 29th August 1984, the Government of India, Department of Personnel (Pension Unit) issued a Memorandum in respect of Benefits On Transfer To Other Bodies. Under the said Memorandum, in respect of the Central Government employees going over to a Central autonomous body where Pension Scheme is in operation or vice versa decided :
"(i) Where a Central Government employee borne on pensionable establishment is allowed to be absorbed in an autonomous body, the service rendered by him under the government shall be allowed to be counted towards pension under the autonomous body irrespective of whether the employee was temporary or permanent in Govt. The pensionary benefits will, however, accrue only if the temporary service is followed by confirmation. If he retires as a temporary employee in the autonomous body, will get terminal benefits as are normally available to temporary employees under the government. The same procedure will apply in the case of employees of the autonomous bodies who are permanently absorbed under the Central Government.
The Government/autonomous body will discharge its pension liability by paying in lump sum as a one time payment, the pro rate pension/service gratuity/terminal gratuity and DCRG for the service up to the date of absorption in the autonomous body/Government, as the case may be. Lump sum amount of the pro rate pension will be determined with reference to commutation table laid down in 7 Patna High Court LPA No.496 of 2011 (8) dt. 11 -10-2012 7 / 11 CCS (Commutation of Pension) Rules, 1981, as amended from time to time".
It further transpires that pursuant to the said Memorandum issued in respect of the employees of the Central Government or the Central Autonomous Bodies, the Board, on 14th February 1992, passed a Resolution of similar nature. It is observed that the service rendered by the employees of the Board earlier under the State Government or the State Government undertaking or the Central Government or the Central Government undertaking did not count for pension in the Board. It was, therefore, decided, "After a careful consideration, the Board vide its resolution No. 6491 dated 29.11.91, has now been pleased to decide to extend the benefit of counting the services rendered by employees of Central Government/Central Government undertakings/ State Govt./State Govt. undertakings who came to Board on deputation and where eventually absorbed in Board's service, for the purpose of pension in the Board as per provisions laid down in the Central Govt., Circulars viz. Office Memorandum No. 28(10)- 84 pension unit dated 29.8.84 and Office Memorandum No. 28(10)-Pt. P & W Vol. 11 dated 7.2.86, 17.6.86, 30.10.86 and 20.3.87, provided, the following two conditions fulfilled:-
(i) Either the Govt./organization lending the services of personnel on deputation pays for terminal benefits with interest (at a rate explicitly mentioned in Central Govt.
Memorandum No. 28(10) dated 29.8.84) for the period so spent with the Govt., or the organization. In case the Govt./organization do not do so, the concerned individual will have to pay;
(ii) This benefit will not be extended in cases 8 Patna High Court LPA No.496 of 2011 (8) dt. 11 -10-2012 8 / 11 where personnel have been inducted in the Board's services on fresh appointment against any advertisement either on lower/equal/higher post".
In the matter of R. L. Marwaha (Supra) similar was the question before the Hon‟ble Supreme Court. The said writ petitioner having served under the Central Government on temporary basis for little more than three years joined the service of ICAR, an autonomous body. The Hon‟ble Court, relying upon the above referred Memorandum dated 29 th August 1984, upheld the claim of the said writ petitioner for computation of pension on the basis of the entire service rendered under the Central Government and under the ICAR, a central autonomous body.
In the present case, as it is evident from the facts recorded hereinabove, the writ petitioner was never a servant of the Central Government or of a Central Autonomous body, referred to in the Memorandum dated 29th August 1984. The said Memorandum, therefore, cannot be invoked to consider the claim of the writ petitioner. The judgment in the matter of R. L. Marwaha (Supra) also, for very reason, does not apply to the facts of the present case.
In our opinion, the learned single Judge has manifestly erred in invoking the office Memorandum dated 29 th August 1984 in case of the writ petitioner, not an employee of the Central Government or a Central Autonomous body. The learned single Judge has also erred in invoking the provisions contained in the Bihar Pension Rules; in holding that since the writ petitioner had not resigned from the service of the State Government, his relationship with the State Government was not severed; in holding that the aforesaid Memorandum dated 29th August 1984 and the Resolution dated 14th February 1992 are beneficial 9 Patna High Court LPA No.496 of 2011 (8) dt. 11 -10-2012 9 / 11 legislation and that they should be construed liberally.
First, the Memorandum or the Resolution cannot be said to be a legislation. Second, however liberally it may be construed, if the Memorandum does not apply in the case of the writ petitioner, it cannot be extended to the writ petitioner even on the principle of the liberal construction.
As recorded hereinabove, the Board had, on its establishment, adopted certain rules of the State Government till the Board framed its own rules/regulations. Once, the Board has framed its own service regulations in exercise of power conferred by Section 79(c) of the Electricity (Supply) Act, 1948, the same shall prevail. The Board having framed its service regulations, it is the Regulations which shall govern the service conditions of the employees of the Board. Once the service regulations are brought into operation the rules in the same subject matter made by the State Government and adopted by the Board shall cease to apply.
The above referred Regulation 75 of the Regulations shall be the governing provision. Clause (iv) of the said Regulation 75 makes a specific provision for clubbing of the service under the State Government with that of the service under the Board, only in cases where the employee of the Board had earlier been serving in the Electricity Department of the State Government, whose service was seconded by the State Government to the Board and who had opted for absorption in the service of the Board. Thus, the said Clause (iv) is an exception to the general rule of terminal benefits under the said Regulation 75. The distinction is very easy to explain. Since the establishment of the Board under the Electricity (Supply) Act, 1948, the functions of the State Government in its Electricity Department were transferred to the Board. The attached staff was also required to be 10 Patna High Court LPA No.496 of 2011 (8) dt. 11 -10-2012 10 / 11 transferred to the Board. Such transfer was in view of the exigency of the administration and not a voluntary switchover by the employees concerned. The provisions relating to such employees who were transferred to the Board and were ultimately absorbed in the service of the Board cannot be equated with the employees recruited and appointed by the Board.
Besides, the learned single Judge is not right in holding that the writ petitioner had not resigned from the Government service and, thus, had not severed his relationship with the State Government. The lien of the writ petitioner in the Government service was specifically terminated under order dated 3rd June 1976 made by the Additional Registrar (Audit), Cooperative Societies. The termination of lien in Government service necessarily led to severance of the master and servant relationship between the State Government and the writ petitioner. As on the date of termination of his lien, the writ petitioner having not rendered sufficient service qualifying for pension (ten years), he was not entitled to pension from the State Government. In our opinion, reliance upon Rules 101 (a) and 134 of the Bihar Pension Rules is totally misplaced.
This leaves the Board‟s Resolution dated 14th February 1992. Paragraph 3 of the said Resolution allows computation of total service as pensionable service only in case of class of employees who came to the Board on deputation and were eventually absorbed in the Board service; that too on condition prescribed under Paragraph 3(i). Under Paragraph 3(ii), the said Resolution specifically excludes the employees of the Board who have been recruited and appointed by the Board. The writ petitioner is the one who had been recruited and appointed by the Board. The writ petitioner is, therefore, not eligible for benefit 11 Patna High Court LPA No.496 of 2011 (8) dt. 11 -10-2012 11 / 11 under Paragraph 3 of the said Resolution dated 14th February 1992. In other words, the writ petitioner is not entitled to the benefit of clubbing his service under the State Government with that of the service under the Board for the purpose of pension. Under Regulation 75 of the Service Regulations, the writ petitioner is entitled to pension in respect of the service rendered by him under the Board alone. The claim of the writ petitioner for clubbing the two services rendered by him, one under the State Government and other rendered under the Board is totally misconceived and contrary to Regulation 75 of the Service Regulations.
For the aforesaid reasons, the Appeal is allowed. The impugned judgment and order dated 24th August 2010 passed by the learned single Judge in CWJC No. 12426 of 2003 is set aside. CWJC No. 12426 of 2003 is dismissed with cost through out.
Interlocutory Application No. 2198 of 2011 stands disposed of.
(R.M. Doshit, CJ)
Sujit/- Ahsanuddin Amanullah, J
A.F.R. I agree.
(Ahsanuddin Amanullah, J)