Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 746 (PAT)

Ram Lakhan Singh v. Bihar State Electricity Board

2000-05-25

R.M.PRASAD

body2000
Judgment R.M.Prasad, J. 1. In this writ petition, the prayer is to direct the respondents to grant all retiral benefits like G.P.F., gratuity, group insurance and other consequential benefits. 2. In short, the relevant facts are that the petitioner was initially appointed in the Office of Patna Electric Supply Undertaking, a Unit of the Bihar State Electricity Board (hereinafter referred to as the Board) on the post of Unskilled Khalasi and later, he was promoted as Meter Reader. While he was posted in the Office of Electrical Executive Engineer, Electric Supply Division (PESU), Patna City in the year 1991, a departmental proceeding was initiated against him in which an order was passed on 25.1.1993 terminating his service. 3. The petitioner filed a writ petition, bearing C.W.J.C. No. 8024 of 1996, in this Court against the said order of termination and this Court vide order dated 4.2.1998 while disposing of the writ petition held that the allegation is only with regard to one instance where the Board has not suffered loss of substantial nature and thus, the punishment awarded to the petitioner was directed to be considered afresh by the disciplinary authority. It was further observed that the question of grant of any benefit to the petitioner will depend upon the determination of question of punishment. 4. Thereafter, the Board gave opportunity to the petitioner, vide letter No. L/D.D.P. 29/96/492 dated 2.5.1998 (Annexure 3), and pursuant to it he appeared on 14.5.1998, but could not explain anything about his case due to mental infirmities as stated in paragraph 10 of the writ petition. By order dated 2.6.1998, contained in Annexure 4, the matter was reconsidered on the question of punishment and having regard to the gravity of misconduct, the punishment of dismissal from service was changed to discharge from service. Thereafter, the petitioner approached the authority for release of the G.P.F. and other benefits, but no notice was taken of his said grievance and the petitioner without assailing the validity of the order of discharge filed the present writ petition seeking for the aforementioned direction. 5. The question for consideration in the present writ petition is thus as to whether the petitioner can be held to be entitled for retiral benefits like G.P.F., gratuity, group insurance and leave encashment, etc. 6. Mr. 5. The question for consideration in the present writ petition is thus as to whether the petitioner can be held to be entitled for retiral benefits like G.P.F., gratuity, group insurance and leave encashment, etc. 6. Mr. Anjani Kumar, learned Counselfor the petitioner submitted that there is no provision which debars a person from getting retiral benefits in case of discharge from service. He submitted that in any view of the matter, the amount of G.P.F., group insurance and leave encashment cannot be withheld in case of discharge, but the respondent-Board has not paid the same till date though almost two years have elapsed since the order of discharge, contained in Annexure 4, was passed. 7. Mr. Shivendra Kishore, learned Counselappearing for the Board submitted that it is not a case of discharge from service simpliciter. It was submitted that in the departmental proceeding the petitioner has been found guilty of not taking spot billing for six months. Though the meter of the concerned consumer was in order, he issued bill on average units. As such, he was found guilty of misconduct under the certified Standing Orders of the Board, for which he was initially dismissed from service but later in view of the order of this Court, the said order of punishment was changed to the order of discharge from service. It was submitted by him that under Sub-clause (B) of Clause 29 of the Standing Orders of the Board, one of the punishments prescribed for misconduct is dischargd, which has been awarded to the petitioner. It was submitted that Rule 46 read with Rule 101 of the Bihar Pension Rules, which have been adopted by the Board, also disentitles a person from getting pension in case of dismissal or removal for misconduct, insolvency or inefficiency. Rule 101 of the Bihar Pension Rules provides that resignation of the public service or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service except that in the case of resignation of an appointment with the approval of the appointing authority to take up another appointment, service in which counts, is not a resignation of the public service under Sub-rule (b) of Rule 101. It was thus submitted that the apex Court in the case of Moti Ram V/s. N.E. Frontier Railway , held that dictionary meaning of the word "dismiss" is "to let go; to relieve from duty". The word "remove" means" to discharge, to get rid off, to dismiss". It was thus held that in ordinary parlance the said words mean nothing more or less than the termination of a persons office and that the effect of dismissal or removal of one from his office is to discharge him from that office. It was thus submitted that the words dismissal, removal or discharge comprehend every termination of the services and application of the aforementioned provisions of Rules 46 and 101 of the Bihar Pension Rules will also be attracted in the case of discharge from service. In support of this, he also placed reliance on a Division Bench judgment of the Bombay High Court in the case of S.K. Kadamv. D.D. & Co. reported in 1977 LAB. I.C. 602, in which it has been held that in case of misconduct, it is open for the employer either to hold enquiry and dismiss the employee by way of punishment or discharge him and pay all retrenchment benefits. 8. This Court fails to appreciate as to how the said decision is of any help to the learned Counselfor the respondent-Board. In the said case the order of discharge without inquiry was held justified where the employer lost confidence in him, when he was found working in others garage privately after leaving the office on false pretext but has nothing to do as to whether in the case of discharge an employee is entitled to get retiral benefits. The Supreme Courts decision in the case of Moti Ram V/s. N.B. Frontier Railway (supra), also deals with in the context of applicability of Article 311 of the Constitution and in that context, it was held that the effect of dismissal or removal of one from his office is to discharge him from that office and in that sense, the said words comprehend every termination of the services of a Government servant in order to attract Article 311(2) of the Constitution. But, this Court finds substance in the submission of the learned Counselfor the Board. But, this Court finds substance in the submission of the learned Counselfor the Board. Discharge from service for misconduct will also entail forfeiture of past service like dismissal or removal from it as in the ordinary parlance the words "dismiss" "remove" or "discharge" mean nothing more or less than the termination of a persons office. It is no doubt that even in the cases of misconduct, it is open for the employer either to hold enquiry and dismiss the employee by way of punishment or discharge him and pay all retrenchment benefits, but it is for the emproyer to decide to adopt either of the courses. However, in my opinion, in the case of discharge /termination simpliciter on account of exigency of service like reduction of work necessitating retrenchment and not on account of misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination will not be covered by the provisions of Rule 46 or Rule 101 of the Bihar Pension Rules. 9. Thus, the petitioner, in the facts and circumstances, will not be entitled for pension, gratuity and leave encashment which depend on the past service rendered by him, but he cannot be denied of the benefits like G.P.F., group insurance which have nothing to do with the forfeiture of past service and not covered by the provisions contained in Rules 46 and 101 of the Bihar Pension Rules. 10. Accordingly, this writ petition is allowed in part. The respondents are directed to pay the amount of G.P.F. and group insurance to the petitioner with up-to-date statutory interest within a week of the receipt/production of a copy of this order, failing which the Chairman, the Secretary and the Director, Accounts of the Board (respondent Nos. 1, 2 and 4 respectively) shall not draw their salary and other allowances till the order is complied. In the facts and circumstances, however, there shall be no order as to costs.