Jharkhand High Court
Nandipati Das vs Bihar State Electricity Board And Ors. on 8 May, 2006
Equivalent citations: [2006(3)JCR268(JHR)], 2007 LAB. I. C. (NOC) 266 (JHAR.) = 2007 (1) AIR JHAR R 724, 2007 (1) AIR JHAR R 724, (2006) 111 FACLR 378, (2006) 4 JLJR 264, (2006) 3 JCR 268 (JHA), (2006) 45 ALLINDCAS 781 (JHA)
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadhaya, J.
1. This writ petition has been preferred by the petitioner for a direction on the respondents to pay him the retiral dues and to fix his pension, taking into consideration the last pay drawn by him. He has also challenged the office order No. 422 dated 12th June, 2002, issued by the Jharkhand State Electricity Board, Ranchi (hereinafter to be referred as 'JSEB'), whereby and where-under while sanctioning the D.C.R. Gratuity amounting to Rs. 1,85,006.25 (rupees one lac eighty five thousand six and twenty five paise), it has ordered to recover a sum of Rs. 99,828.00 (rupees ninety nine thousand eight hundred and twenty eight) from the OCR. Gratuity, on the ground of excess amount, paid to firm. It has also been prayed to direct the respondents to pay him the amount towards the leave encashment and difference of salary, due to revision of pay, for the period from 1st April. 1997 to 31st January, 2000.
2. The petitioner, who was in the service of the Jharkhand State Electricity Board, Ranchi, retired on 31st January, 2000 from the post of Head Clerk, Patratu Thermal Power Station, Patratu (hereinafter to be referred as 'P.T.P.S.'). He having not been paid the retiral benefits, moved before this Court in CWJC No. 802 of 2001, wherein, a Bench of this Court by order dated 27th February, 2001 remitted the case with a direction to the competent authority to pay the petitioner all the admitted dues, legally payable to him, within three months. The pay of the petitioner not having been fixed on the basis of the last pay, drawn by him, and the total dues not having been paid inspite of the Court's order, he had to prefer a contempt petition being Contempt case (C) No. 724 of 2001, wherein, a Bench of this Court having noticed the rival submissions, relating to fixation of pepsin and certain amount having been paid, did not choose to initiated the contempt proceeding and it was, accordingly, dropped on 1st August, 2003. In the Contempt proceeding it having been brought to the notice of the Court that the order No. 422 dated 12th June, 2002 has been issued to pay the D.C.R. gratuity after recovering a sum of Rs. 99,828.00 from the said D.C.R. Gratuity amount, the petitioner has challenged the said order in the present case.
3. The respondents have taken plea that the petitioner's pay fixation was examined by the Audit Department of the Bihar State Electricity Board and it was found that the petitioner was promoted on 21st August, 1982 on the post of Head Clerk and the pay fixation was done but three advance increments, given to the petitioners due to passing of departmental examination, were not adjusted. A copy of the audit/objection, forwarded to the Bihar State Electricity Board vide letter No. 1314 dated 25th May, 2000 has been enclosed as Annexure-A to the counter affidavit, from which the following fact emerges:
The petitioner was allowed three advance increments having passed the requisite departmental examination as per the guidelines. He has getting salary of Rs. 690/- prior to 21st August. 1982. On 21st August, 1982 he was promoted as Head Clerk. Accordingly, after retirement of the petitioner, for the purposes of calculation of pension when re-fixation was made by the Audit Department on 25the January, 2000, it deduced Rs. 54/- from the salary i.e. three advance increments and notionally fixed it in a lower pay of Rs. 636/- as on 21st August, 1982. Thereafter, the pay revision having been made with effect from 1st April, 1983 and then from 1st January, 1986 his pay was fixed accordingly and they it was observed that excess amount having been paid to the petitioner, get it recovered.
4. Counsel for the Electricity Board relied on the Standing Order No. XIII/D1/ 1017/75-515/EB Patna dated 7th May, 1976, issued by the Bihar State Electricity Board, Patna, wherein, giving reference to Standing Order No. 454 dated 19th June, 1975, certain modification was made and the following guideline was issued, relevant clause 3 of which reads as follows:
Where promotional avenues are available, double benefit in fixation of pay shall not be allowed. Deduction from the salary of those workmen who have already been benefited twice in the matter of pay fixation, i.e. once in the Selection Grade and again in promotion shall be made immediately, in twelve equal installments or at the rate of Rs. 60/- p.m. whichever will effect the recovery earlier.
5. It was submitted that the petitioner was given double benefit of fixation of pay against the guideline, issued on 7th May, 1976, but such submission can not be accepted for the following reasons:
Clause 3 of the guideline relates to prohibition to give double benefit in fixation of pay twice in the matter of promotion i.e. once in the selection grade and again in regular promotion and in such case it has been ordered to recover the amount in installments.
6. Admittedly, the petitioner has not been given double benefit in fixation of pay in the matter of pay fixation at the time of two promotions. The first benefit of pay fixation was given due to grant of three advance increments, which is distinct from the selection grade promotion or the regular promotion. The regular promotion was granted to the post of Head Clerk on 21st August, 1982, which was a regular promotion and not a second promotion after selection grade promotion. Therefore, the Standing. Order No. 515EB dated 7th May, 1976 is not applicable in the case of the petitioner and the respondents have wrongly fixed his pay in the lower grade after his retirement, as circulated vide letter No. 1314 dated 25th May, 2000 (Annexure A to the counter affidavit).
7. Learned Counsel for the petitioner while submitted that there was no misrepresentation on the part of the petitioner, relied on one or other decision of the Court. Similarly counsel for the JSEB, submitted that if a wrong is committed in the matter of pay fixation, it can be recovered and thereby, relied on one or other decision of the Court.
8. This Court is not giving reference to any of such decision, as in the present case, as mentioned above, there is nothing on the record to suggest that wrong pay fixation was made by giving double benefit of fixation at the time of granting selection grade and then at the time of regular promotion.
9. Apart from the aforesaid facts, the respondents have not made it clear as to how any amount can be recovered from the D.C.R. Gratuity of the petitioner, without following the prescribed procedure. It is informed that the Bihar Pension Rules, 1950 is applicable for the Jharkhand State Electricity Board's employees. Under Rule 43(b) of the Bihar Pension Rules, 1950, no amount can be recovered or deducted from the pension, which includes gratuity, without a proceeding and that too can be done, if there is a misconduct on the part of the employee or if there is a loss of the exchequer of the Board, due to misconduct or negligence of the employee. In the present case, neither the procedure; prescribed under Rule 43(b) was followed nor the respondents could lay hands on any documents to suggest that there was a misconduct on the part of the petitioner or there is a loss of exchequer of the Board due to the misconduct or negligence of the petitioner.
10. For the reasons aforesaid, order No. 422 dated 12th June, 2002, issued by the JSEB is set aside. Letter No. 1314 dated 24th May, 2000 by which Bihar State Electricity Board, Patna, informed the Jharkhand State Electricity Board, Ranchi to deduct the amount from the retiral benefits of the petitioner and the copy of pay fixation, as made by the audit department enclosed to the said letter are declared void and thereby set aside. The respondents are directed to fix the pension of the petitioner on the basis of the last pay drawn, to which he was entitled and to pay him the difference of pension, gratuity, full leave encashment, arrears of salary etc., to which he is entitled within two months from the date of receipt/production of a copy of this order, failing which they will be liable to pay interest on such dues at the rate of 5% per annum from the date the petitioner retired from service,
11. The writ petition is, thus, allowed with the aforesaid observations and directions, with a cost of Rs. 2000/- to paid in favour of the petitioner, within the time, scheduled above.