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2000 DIGILAW 1141 (PAT)

Rajgrihi Rai v. State Of Bihar

2000-09-20

S.K.KATRIAR

body2000
Judgment S.K.Katriar, J. 1. This writ petition has been preferred with the prayer to pay the entire retirement benefits of the petitioner, i.e. provident fund amount, gratuity, leave salary, pension, bonus, arrears of pay and also difference of pay from 1989 to 1990 with statutory interest payable on the dues. 2. The petitioner retired from the services of the Chapra Municipality on the last day of January 1994, as Jamadar (Head Sweeper) after putting in service of 33 years. The first grievance raised on behalf of the petitioner is that he has been paid a total sum of Rs. 239/- towards earned leave. In his submission, his last drawn salary was Rs. 1795/- per month and he is, therefore, entitled to leave encashment for 240 days which comes to Rs. 14360/-. He invited my attention to paragraph 10 of the writ petition wherein the necessary averment have been made for deficient payment for leave encashment. On a bare perusal of paragraph 10 of the writ petition, I find that the requisite foundational fact has not been laid in the writ petition in order to satisfy the Court that the petitioner has been paid deficient amount of leave encashment. In that view of the matter, the claim for earned leave is rejected on the ground of vague and incomplete pleadings. 3. Learned counsel for the petitioner then submitted that the petitioner has not been paid the half pay leave. He has neither been able to show or place before this Court the rule whereunder the employee of a Municipal Corporation is entitled to money equivalent or unutilised half-pay leave. He has also not been able to show that it is allowed to accumulate, and is encashable after retirement. The requisite foundational fact is also absent in the writ petition. In that view of the matter, the claim for money equivalent of half-pay leave is also rejected. 4. Learned counsel for the petitioner next submitted that the petitioner has been given the gratuity amounting to Rs. 14025/- plus dearness allowance thereupon, totalling a sum of Rs. 16830/-, whereas the petitioner is entitled to Rs. 31153/-. The requisite foundational fact in the writ petition is absent. Learned counsel has, however, taken me through paragraph 7 of the "Supplementary affidavit to reply to the counter affidavit", wherein he has asserted that total sum of Rs. 14025/- plus dearness allowance thereupon, totalling a sum of Rs. 16830/-, whereas the petitioner is entitled to Rs. 31153/-. The requisite foundational fact in the writ petition is absent. Learned counsel has, however, taken me through paragraph 7 of the "Supplementary affidavit to reply to the counter affidavit", wherein he has asserted that total sum of Rs. 31153/- towards the gratuity is payable to him minus the amount already paid to him. Apart from the fact that the factual foundation has not been laid in the writ petition, the averments made in paragraph 7 aforesaid is vague and inadequate. Annexure 6 is the chart the heading of which is "Payment of Gratuity payable at a glance". It Is nowhere stated in the said affidavit as to the source of this chart, authenticity of the same, its applicability to the petitioner, and even if applicable to the petitioner, in what way it shall actually work out for the petitioner. Inspite of repeated quaries, learned counsel was unable to show the relevance of the said chart. Therefore, the contention for the balance amount of gratuity is rejected. 5. The petitioner lastly submitted that he has been paid Rs. 23564/- on 2.12.99 by way of contributory provident fund (CPF). He submits that the Bihar Municipal Officers and servants Pension Rules, 1987, was enforced with effect from 1.4.1986, and was published in the Bihar Gazette Extra-Ordinary on 13.11.87. Relying on the provisions of rule 4(1) of the Rules, he submits that he should not be given the option of monthly pension with the direction to the Municipality to take back the entire CPF paid to the petitioner. He relies on the judgment of the Supreme Court reported in AIR 1995 SC 983 (R. Subramaniam V/s. Chief Personnel Officer), as also the judgment of a learned Single Judge of this Court reported in 1996 (1) Bihar Law Times 729 (Kameshwar Prasad V/s. State of Bihar). I am unable to accede to the submission for the reason that the petitioner was given the entire amount of CPF which he accepted, and he cannot now turn round and disown the same. Having made the election and taken the benefit under a scheme, he cannot at a later date turn round and disown his election. Law in this context is enunciated in Halsburys Laws of England, 4th Edition, Vol. Having made the election and taken the benefit under a scheme, he cannot at a later date turn round and disown his election. Law in this context is enunciated in Halsburys Laws of England, 4th Edition, Vol. 16, Page 1012, Para 1507, wherein it is stated as follows : "1507. Approbation and reprobation, On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions, (I) that the person in question, having a choice between two courses or conduct, is to be treated as having made an election from which he cannot resile, and (2) that he will not be regarded in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent. Thus a plaintiff, having two inconsistent claims, who elects to abandon one and pursue the other may not, in general, afterwards choose to return to the former claim and sue on it; but this rule of election does not apply where the two claims are not inconsistent and the circumstances do not show any intention to abandon one of them. The common law principle which puts a man to his election between alternative inconsistent courses of conduct has no connection with the equitable doctrine of election and relates mainly, though not exclusively, to alternative remedies in a court of justice" Secondly, the petitioner never opted in terms of rule 4 of the Pension Rules to have the benefit of monthly pension. He instead opted for the scheme of CPF. Having withdrawn the entire proceeds of the CPF, the petitioner cannot now be allowed to disown the same and opt for the monthly pension. In so far as the aforesaid judgment of the Supreme Court in the case of R. Subramaniam vs. Chief Personnel Officer is concerned, the petitioner therein had opted for the pension scheme a little late which was condoned by the Supreme Court and was, therefore, allowed the benefit of monthly pension. In so far as the aforesaid judgment of the Supreme Court in the case of R. Subramaniam vs. Chief Personnel Officer is concerned, the petitioner therein had opted for the pension scheme a little late which was condoned by the Supreme Court and was, therefore, allowed the benefit of monthly pension. On the other hand, in the present case, as held hereinabove, there is no averment in the writ petition that the petitioner ever opted for the monthly pension in terms of rule 4. Just the same is the position with respect to the aforesaid judgment of this Court in the case of Kameshwar Prasad vs. State of Bihar (supra). It is manifest from a plain reading of paragraph 5 of the judgment that the petitioner had exercised his option for pension. In that view of the matter, the present case stands on a fundamentally different footing. Furthermore, the present writ petition is hit by delay, laches, and acquiescence. Settled matters cannot be allowed to be unsettled like this. The petitioner superannuated on 31.1.94, and this writ petition was lodged in this Court on 18.12.98. Furthermore, the writ petition on the whole is characterised by vague and inadequate pleadings. The petitioners prayer to change over to the scheme of monthly pension from that of CPF is unsustainable in law and is hereby rejected. 6. In the result, this writ petition is dismissed.