Jharkhand High Court
Prabhu Ram vs State Of Jharkhand & Ors. on 8 June, 2017
Equivalent citations: 2017 AJR 739, (2017) 4 JCR 236 (JHA)
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
W.P. (S) No. 3561 of 2006
(In the matter of an application under Article 226 of the Constitution of India)
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Prabhu Ram, Son of Late Ramdhani Ram, Resident of C/o Nimai Das,
near Railway Colony, Rerma, Daltonganj, Palamau, P.O. And P.S.
Daltonganj, District-Palamau, ... ... ... ... .. Petitioner
Versus
1.The State of Jharkhand
2.The Secretary, Human Resources and Development Department,
Government of Jharkhand, Ranchi
3.The Director, Adult Formal and Primary Education, Jharkhand, Ranchi
4. The District Education Officer, Garhwa, Jharkhand
5. District Superintendent of Education, Garhwa, Jharkhand
6. District Provident Fund Officer, State of Jharkhand
7. District Provident Fund Officer, Garhwa, Jharkhand
... ... ... ... Respondents
For the Petitioner : Mr. Amritansh Vats, Advocate
For the Respondents : Mr. Sharad Kaushal, J.C. to A.A.G.
PRESENT
HON'BLE MR. JUSTICE RAJESH SHANKAR
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By Court : Heard learned counsel for the parties.
2. By way of present writ petition, the petitioner has prayed for quashing the order dated 20th February 2006 (Annexure-6 to the present writ petition) issued under the signature of respondent no. 5, whereby the claim of the petitioner for payment of his retiral dues has been rejected on the ground that the scheme under which the petitioner was posted had already been closed w.e.f. 16.05.2001. It has further been prayed in the writ petition that the respondents may be directed to release the entire retiral dues including gratuity and leave encashment and to forthwith fix and finalise the pension and release the arrears of salary of the petitioner.
3. It is submitted by learned counsel for the petitioner that the petitioner retired on 31.01.2002 from the post of Project Officer, in the district of Garhwa under the Human Resources Development Department Govt. of Jharkhand. The petitioner earlier filed a writ petition before this Court being W.P.(S) No. 1690 of 2005 with the prayer for issuance of direction upon the respondents to pay the retiral benefits to the petitioner. The said writ petition was disposed of vide order dated 12.04.2005 (Annexure-1 to the writ petition) with a direction to the District 2 Education Officer, Garhwa and the General Provident Fund Officer, Garhwa to release the entire admitted dues legally payable to the petitioner together with statutory interest within a period of two months from the date of production of a copy of the order.
4. The grievance of the petitioner in the present writ petition is that though the payment of group insurance and general provident fund have been paid to the petitioner pursuant to the direction of this Court contained in W.P.(S) No. 1690 of 2005, yet vide impugned letter no. 278 dated 20.02.2006, the District Superintendent of Education, Garhwa refused to make payment of pension and gratuity to the petitioner on the ground that the scheme of Non-formal education came to an end on 16.05.2001, but the petitioner would have retired on 31.01.2002. The said letter dated 20.02.2006 being arbitrary and illegal has been challenged by the petitioner in the present writ petition. The petitioner has also stated that he was not paid arrears of salary for the period from 17.03.1998 to 07.05.1998, 01.12.1998 to 28.12.1998, 28.02.1999 to 01.02.2000, 29.02.2000 to 01.05.2001 as well as the arrears of difference of salary from 17.03.1998 to June 1999 and the arrears of annual increment from 17.03.1999 to February, 2000.
5. Learned counsel for the petitioner further submits that this Court in the case of Bhubneswar Mahto versus State of Jharkhand and Others (W.P.(S) No. 4751 of 2003), vide order dated 21.11.2003 (Annexure- 7 to the writ petition), while considering the issue regarding payment of retiral dues to an employee of Mass Education Department having closed since 16th May 2001, directed the respondents to pay full pension, gratuity, leave encashment, provident fund etc. to him. The said order dated 21.11.2003 passed in W.P. (S) No. 4751 of 2003 was challenged by the State of Jharkhand in L.P.A. No. 515 of 2004 and the same was dismissed vide order dated 27.04.2005 (Annexure-8 to the writ petition). Thereafter the State of Jharkhand moved before the Hon'ble Supreme Court in Special Leave to Appeal (Civil) C.C. No. 8793 of 2005 and the same was also dismissed vide order dated 30.09.2005 (Annexure-9 to the writ petition). Resultantly, the Director, Primary Education, Jharkhand vide order dated 17.01.2006 (Annexure-10 to the writ petition) took a decision in favour of said Bhubneswar Mahto to release all admissible retiral dues in his favour such as pension, gratuity, general provident 3 fund, leave encashment etc. Learned counsel for the petitioner further submits that the case of the petitioner is similar to said Bhubneswar Mahto who has already been ordered to be paid all the retiral dues including the arrears of salary, G.P.F., leave encashment, gratuity and pension. As such, there is no reason as to why the petitioner should also not be paid all admissible retiral dues by the respondents including the gratuity and pension.
6. Per contra, the J.C. to learned A.A.G. while referring to the counter-affidavit filed on behalf of respondent no. 5 as well as respondent no. 7 submits that the amount of G.P.F. and Group Insurance considering the closure of the Non-formal Education scheme on 16.05.2001, have already been paid to the petitioner, however, the petitioner is not entitled for payment of gratuity and pension as the Non-formal Education scheme itself came to an end before the superannuation of the petitioner. It is also submitted that the order passed in the case of said Bhubneswar Mahto cannot be made effective in the case of the petitioner as there is no judicial pronouncement in his favour.
7. On consideration of the rival submissions of the learned counsel for the parties, the issue to be decided here is as to whether the petitioner is entitled for payment of gratuity and pension in addition to other admissible retiral dues. For adjudicating the said aspect, it would be relevant to go through the order dated 21.11.2003 passed in W.P.( S) No. 4751 of 2003 in the case of Bhubneswar Mahto Versus State of Jharkhand. The relevant paragraphs of the said order is quoted hereunder for better appreciation of the case.
According to respondents the petitioner retired from the Mass Education Department of the State on 31st July 2001. Said Department (Mass Education) having closed since 15th May 2001 to 31st July, 2001 the salary of the subsequent period has not been paid.
The respondents have not disputed that the petitioner was a regular employee of the State. He was working since 1968 and is entitled to get pension, gratuity, leave encashment etc. in accordance with law. If the scheme of the State Government was closed since 16th May 2001, but the employees were not retrenched and the authorities have not taken any work from such employees. There being no latches on the part of the employee, the respondents cannot deny his salary. It is always open to the State Government not to take work but they are duty bound to pay salary if the employee is in service.
4In the facts and circumstances, the respondents are directed to pay the petitioner salary for the period from 16th May 2001 to 31st July 2001 (date of retirement) and all the admitted retiral benefits, counting the aforesaid period, such as full pension, gratuity, leave encashment, provident fund etc. if not yet paid within a period of three months from the date of receipt/production of a copy of this order failing which the respondents will liable to pay interest @ 5% on the admitted dues from the date of retirement (31st July 2001) as also a cost of Rs. 10,000/- in favour of petitioner.
8. It would be evident from perusal of the aforesaid order passed by this Court in the case of Bhubneswar Mahto (Supra) that the respondents/state authorities were directed to make payment of all admitted retiral benefits such as full pension, gratuity, leave encashment, provident fund etc. with suitable interest over the same. The appeals preferred by the State of Jharkhand against the said order were dismissed vide order dated 27.04.2005 in L.P.A. No. 515 of 2004 by the Division Bench of this Court and vide order dated 30.09.2005 in Special Leave to Appeal (Civil) CC 8793 of 2005 by the Hon'ble Supreme Court. Thus the issue regarding admissibility of the retiral dues including payment of gratuity and pension to the employees working under the Non-formal Education Scheme irrespective of its closure w.e.f. 16th May 2001 has become final. The respondents in their respective counter-affidavits have not denied the fact that the case of Bhubneswar Mahto is similar to the case of the petitioner. It has also not been denied by the respondents that the petitioner was not the regular employee of the State Government and therefore there is no reason to deny the retiral dues to the petitioner including the gratuity and pension.
9. Under the said legal and factual background, the State respondents are not justified in taking the stand that since the Non- formal Education Scheme came to an end w.e.f. 16th May 2001, and the petitioner had to retire from service on 31.01.2002, he would not be entitled for payment of gratuity and pension. Thus, in my considered view, the impugned order dated 20.02.2006 (Annexure-6 to the writ petition) wherein it has been stated that the petitioner is not entitled for payment of gratuity and pension, as he retired after the closure of the scheme cannot be legally sustained. Thus, the impugned order contained in letter No. 278 dated 20.02.2006 (Annexure-6) being illegal, 5 discriminatory and arbitrary is quashed and set aside.
10. Since the amount of G.P.F. and group insurance have already been paid to the petitioner by the respondents authorities, no direction need be passed so far as the payment of the same are concerned. The District Superintendent of Education, Garhwa is directed to make payment of gratuity and to forthwith take steps for fixation of pension of the petitioner and also to pay him the arrears of pension within a period of four months from the date of receipt/production of the copy of this order. The District Superintendent of Education, Garhwa is also directed to make payment of other dues such as leave encashment and admitted amount of arrears of salary (if not earlier paid) to the petitioner within the aforesaid period. All the aforesaid amount shall carry 6% interest till the date of payment.
11. This writ petition is accordingly allowed and disposed of with aforesaid direction and observation.
(Rajesh Shankar, J.) Jharkhand High Court, Ranchi Dated 08/06/2017 Binit/A.F.R.