Gauhati High Court
Birendra Kumar Das vs The Assam Power Generation Corporation ... on 21 January, 2019
Equivalent citations: AIRONLINE 2019 GAU 8, 2019 LAB IC (NOC) 48 (GAU) (2019) 3 GAU LT 291, (2019) 3 GAU LT 291
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
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GAHC010227502018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7083/2018
1:BIRENDRA KUMAR DAS
S/O- LATE RAJANI KANTA DAS, R/O- RUPKONWAR HOUSING COMPLEX,
WEST JALUKBARI, P.O- GAUHATI UNIVERSITY, GUWAHATI, DIST-
KAMRUP(M), ASSAM, PIN- 781014
VERSUS
1:THE ASSAM POWER GENERATION CORPORATION LTD AND 4 ORS
REP. BY THE MANAGING DIRECTOR, BIJULEE BHAWAN, PALTAN BAZAR,
GUWAHATI- 01, DIST- KAMRUP(M), ASSAM
2:THE CHIEF GENERAL MANAGER(HR)
OFFICE OF THE MD APGCL
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI- 01
DIST- KAMRUP(M)
ASSAM
3:THE GENERAL MANAGER(HR)
OFFICE OF THE MD APGCL
BIJULEE BHAWAN
PALTAN BAZAR
GHY- 01
DIST- KAMRUP(M)
ASSAM
4:THE ASSISTANT GM (HR)
OFFICE OF THE MD APGCL
BIJULEE BHAWAN
PALTANBAZAR
GHY- 01
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DIST- KAMRUP(M)
ASSAM
5:THE ASSTT MANAGER (HR)
OFFICE OF THE MD APGCL
BIJULEE BHAWAN
PALTANBAZAR
GUWAHATI- 01
DIST- KAMRUP(M)
ASSA
Advocate for the Petitioner : MR. N ZAMAN
Advocate for the Respondent : MR B D DAS (SR. SC, APGCL)
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
JUDGMENT
Date : 21-01-2019 Heard Mr. A. Ganguly, learned counsel for the petitioner as well as Mr. B.D. Das, learned senior counsel for the APGCL.
2. The petitioner, while discharging duty as an Assistant Manager (Civil) in the Establishment of General Manager, Design (Civil), APGCL, Narengi was arrested on 24.04.2010 in connection with Bilasipara P.S. Case No. 173/2009 under Sections 406/408/409/470/120(B)/468/471 of the IPC. The petitioner was placed under suspension with effect from the date of his arrest vide Order dated 30.04.2010. He was reinstated in service on 16.06.2010 but no departmental proceeding was initiated against him. However, charge sheet was filed against the petitioner in respect of Bilasipara P.S. Case No. 173/2009. The petitioner retired on 31.03.2014, i.e., during the pendency of the criminal case.
3. The petitioner's counsel submits that one of the co-accused challenged the filing of the charge sheet in Bilasipara P.S. Case No. 173/2009 and this Court vide Order dated 19.02.2014 passed in Criminal Revision Petition No. 59/2014 stayed the proceedings of the criminal Trial Court.
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4. The petitioner's counsel submits that as the petitioner has retired, the petitioner is entitled to be given his full pension, gratuity and other retirement benefits, as there is no departmental proceeding initiated against the petitioner and as the criminal proceeding has been stayed by this Court. He also submits that the petitioner should have been promoted to the post of Deputy Manager (Civil) in the year 2011, on the ground of seniority, as he was the senior most Assistant Manager at the time he retired. In this respect, he has referred to the office Order dated 17.05.2011, issued by the Director (Personnel), Assam State Electricity Board, whereby 8 (eight) persons, who were allegedly junior to the petitioner have been promoted to the post of Deputy Manager, (Civil).
5. He accordingly submits that a direction should be issued to the respondent authorities to initiate a departmental proceeding against the petitioner and dispose off the same or in the alternative, to pay him his full pension, gratuity and other retirement benefits. The petitioner's counsel also prays that the petitioner should be given promotion with effect from the date his juniors had been promoted to the post of Deputy Manager (Civil) i.e., 17.05.2011.
6. Mr. B.D. Das, learned senior counsel for the APGCL submits that as per the provision of Rule 69 of the CCS (Pension) Rules, 1972, the petitioner is entitled to provisional pension during the pendency of judicial proceedings and that the petitioner is not entitled to any gratuity during the pendency of judicial proceedings. He also submits that all other retirement benefits have been paid to the petitioner.
7. Mr. B.D. Das also submits that there was no vacancy in the post of Deputy Manager (Civil) prior to his retirement and that the petitioner has not made any challenge to the office Order dated 17.05.2011, even in this writ petition.
8. I have heard the learned counsels for the parties.
9. Rule 69 of the CCS (Pension) Rules, 1972 specifically provides that a Page No.# 4/5 retired government servant is not entitled to any gratuity and would be entitled to provisional pension only, during the pendency of judicial proceedings.
10. In view of the fact that the petitioner has been receiving provisional pension, this Court does not find any illegality in the non-payment of full pension or gratuity to the petitioner. With regard to the petitioner's contention that the petitioner should have been promoted to the post of Deputy Manager (Civil) w.e.f., 17.05.2011 i.e., the date the office order promoting 8 (eight) Assistant Managers to Deputy Managers (Civil) had been made, this Court finds that the petitioner has not made any challenge to the office Order dated 17.05.2011 earlier or even in this writ petition.
11. Further, with regard to the stand taken by the petitioner that he is senior to the 8 (eight) persons who were promoted to the post of Deputy Manager (Civil) vide the office Order dated 17.05.2011, this Court finds that those 8 (eight) persons mentioned in the office Order dated 17.05.2011 are not parties in the present writ petition. There is also considerable delay and laches in the stand taken by the petitioner in this writ petition that he should have been promoted w.e.f., 17.05.2011, as he has filed this case only on 04.10.2018, while his alleged juniors have been promoted on 17.05.2011. The petitioner not having made any challenge to the office Order dated 17.05.2011 during his service period or prayed for promotion, he cannot now be allowed to do the same after his retirement.
12. In view of the reasons stated above, this Court does not find any merit in the writ petition and the same is accordingly dismissed.
13. However, in the event, the respondents have not paid to the petitioner any other retirement benefits, which he might be entitled to, sans full pension and gratuity, the same should be given to the petitioner within a period of 6 (six) weeks from today.
Page No.# 5/5 JUDGE Comparing Assistant