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2003 DIGILAW 15 (PAT)

Ram Dulari Devi v. Bihar State Electricity Board

2003-01-07

S.N.JHA

body2003
Judgment S.N.Jha, J. 1. This writ petition by Ram Chandra Mahtowho died during pendency of this case and is now represented by his wife Ram Dulari Devi(hereinafter referred to as the petitioner) is directed against the decision of the Bihar State Electricity Board (in short the Board) treating him as re-appointed with effect from the date of his joining the Patratu Thermal Power Station pursuant to Boards letter no. 256 dated 7.6.93 denying him the benefit of his past service and directing that his salary be fixed at the initial level of the relevant scale. Copy of the said decision communicated by the Joint Secretary of the Board by memo no. 10 dated 5.1.2000 is Annexure-15 to the writ petition. The prayer, further, is for a direction to count his past service from the date of initial appointment i.e. 28.11.74 for giving him the service benefits. 2. The facts of the case, briefly stated, are as follows. The petitioner was appointed as an Operator at the Barauni Thermal Power Station in the service of the Board on 28.11.74. On 6.8.83 an F.I.R. was lodged against him and five others, namely, Indradeo Jha, Mahesh Dutta Pathak, Rameshwar Prasad. Ram Nandan Mahto and Bhuneshwar Pd. Mahto, and he was placed under suspension on 8.8.83. On 27.8.83 charge memo was issued and he was subjected to a departmental proceeding. On 4.5.85 he was dismissed from service on being found guilty for misconduct. The case of the petitioner in this regard is that the Inquiry Officer was hostile to him as he had levelled allegation against his brother. But notwithstanding his objection, the inquiry continued and he was eventually dismissed from service on the report of the said Inquiry Officer. Meantime, 17 Operators were promoted as Assistant Controller, one post was kept reserved for him at serial no. 16 of the list. Two out of the abovementioned five persons, namely, Ramnandan Mahto and Bhuneshwar Pd. Mahto had meanwhile moved the Labour Court against termination of their services. The Labour Court held that the termination was illegal and pursuant to the award they were reinstated. The remaining three i.e. I.D. Jha, M.D. Pathak and Rameshwar Prasad also were reinstated. The petitioner in the meantime was acquitted in the criminal case. Mahto had meanwhile moved the Labour Court against termination of their services. The Labour Court held that the termination was illegal and pursuant to the award they were reinstated. The remaining three i.e. I.D. Jha, M.D. Pathak and Rameshwar Prasad also were reinstated. The petitioner in the meantime was acquitted in the criminal case. The case of the petitioner is that in view of the acquittal and reinstatement of I.D. Jha and others his case was re-considered and decision was taken to reinstate him too vide memo no. 256 dated 7.6.93 of the Director of Personnel. Copy of the letter is Annexure-7 to the writ petition. In the light of the said letter, the General Manager, Patratu Thermal Power Station issued memo no. 3649 dated 9.6.93 and the petitioner submitted his joining on 12.6.93. On 11.8.95 he was transferred from Patratu Thermal Power Station to Barauni Thermal Power Station. He made representation to fix his seniority and by office order no. 546 dated 4.11.95 the General Manager, Barauni Thermal Power Station directed that his seniority as Operator as shown in office order no.1027 dated 12.11.84 shall be maintained. He was placed below Pramod Kumar and above Nitya Nand Singh. The petitioner filed representation for his promotion as Assistant Controller on the ground that Nitya Nand Singh stood promoted on the post. The General Manager, Barauni Thermal Power Station made reference to the Boards headquarters. Instead of allowing the representation the impugned order was issued directing that his appointment will be treated as fresh employment and he will not be entitled to count his past service. 3. During the pendency of the case, office order no. 60 dated 15.2.2000 was issued cancelling with retrospective effect office order no. 546 dated 4.11.95 by which his seniority had been fixed below Shri Pramod Kumar and above Nityanand Singh. Another order being office order no. 233 dated 20.6.2000 was issued fixing his pay with effect from 12.6.93 and directing that the excess amount drawn by him will be deducted in instalments. The said two orders dated 15.2.2000 and 20.6.2000 are Annexures 19 and 20 to the interlocutory application (l.A. No. 4808/2000) by which the petitioner seeks stay/quashing of the said orders. 4. 233 dated 20.6.2000 was issued fixing his pay with effect from 12.6.93 and directing that the excess amount drawn by him will be deducted in instalments. The said two orders dated 15.2.2000 and 20.6.2000 are Annexures 19 and 20 to the interlocutory application (l.A. No. 4808/2000) by which the petitioner seeks stay/quashing of the said orders. 4. It was submitted on behalf of the petitioner that vide clause (iii) of paragraph 3 of the letter dated 7.6.93, Annexure-7, and the consequential communication of the General Manager, Patratu Thermal Power Station dated 9.6.93, the intervening period from the date of dismissal to the date of fresh appointment was to count for fixation of pay, increment and also to be treated as continuous for pensionary benefits. The petitioner having accepted the employment on that condition, later, the condition could not be altered to his detriment much less giving opportunity of hearing. Reliance was placed on Ruplal Rajak V/s. The State of Bihar & Ors, 1991 BRLJ 165, K.I. Shephoral & Ors. V/s. Union of India, AIR 1988 Supreme Court 686, H.L. Trehan & Ors. V/s. Union of India & Ors., AIR 1989 Supreme Court 568, Charan Lal Sahu V/s. Union of India & Ors., AIR 1990 Supreme Court 1480, Management of M/s. M.S. Nally Bharat Engineering Co. Ltd. V/s. The State of Bihar & Ors., (1990) 2 SCC 48 , and D.K. Yadav V/s. J.M.A. Industries Ltd., (1993) 3 SCC 359 :1994 (1) PLJR (SC) 55. In any view, it was urged, the amount already paid to the petitioner should not be recovered, particularly after his death. When attention of the counsel was drawn to the fact that it was a case of re-employment and it was specifically mentioned in clause (ii) of paragraph 3 of the letter dated 7.6.93 that the petitioner "will not be entitled to claim for pay for the period, since the date of termination of his service to the date of his reemployment afresh which is purely on compassionate ground", counsel submitted that after re-appointment too the benefit of past service can be granted. 5. 5. The case of the Board is that the decision to re-employ the petitioner was without jurisdiction, in terms of the Regulations dated 14.5.80, Notification No. 446/EB, framed under section 79(c) of the Electricity (Supply) Act, 1948 no workman who is discharged/dismissed from the service of the Board or whose lien/service is terminated could henceforth be reinstated/re-employed by his appointing authority or by the appellate authority or any other superior authority including the Member/Chairman of the Board. Where the appointing authority/appellate authority considers it appropriate to reinstate/re-employ a discharged/dismissed workmen or to reinstate/re-employ a workman whose lien/service has been terminated, he has to refer the case to the Boards Head Quarters with full facts along with his recomendation seeking approval of the Board for the same. Thus cases of reinstatement/re-employment of discharged/dismissed workman or the cases of reinstatement/re-employment of workman whose lien/service has been terminated have to be "invariably" placed before the Board for decision. In the instant case, however, the decision was taken by the Chairman without making reference to the Board. The further case of the Board is that the petitioner stood on different footing from I.D. Jha and the other four. Their services had been terminated under clause 28 of the Standing Order without any departmental proceeding. Two of them, Ramnandan Mahto and Bhuneshwar Pd. Mahto, moved the Labour Court which held that the termination was illegal and they were directed to be reinstated. They were accordingly re-instated pursuant to the award. I.D. Jha, M.D. Pathak and Rameshwar Prasad stood on par because their services too had been terminated under clause 28 of the Standing Order, unlike the petitioner who was dismissed from service after regular disciplinary proceeding. Besides, in their cases the Board had taken a decision for their re-employment vide resolution no. 6246 dated 26.9.89-in accordance with Regulations dated 14.5.80 (supra). The decision to re-employ the petitioner vide Annexure 7 dated 7.6.93 was thus not in accordance with law and therefore not binding on the Board. There being a concluded finding against the petitioner in the departmental proceeding to the effect that he had indulged in agitation including gherao of the officials, had left the work without permission and disrupted the normal functioning of the plant, his case stands on a different footing. There being a concluded finding against the petitioner in the departmental proceeding to the effect that he had indulged in agitation including gherao of the officials, had left the work without permission and disrupted the normal functioning of the plant, his case stands on a different footing. However, as the petitioner had already joined as Operator pursuant to the abovesaid letters dated 7/9.6.93 the Board decided to treat his appointment as a fresh employment. The letter dated 7.6.93 clearly mentioned that it was a fresh employment and the past period would not be counted. The petitioner never challenged the terms of his re-empioyment. Though the petitioner was acquitted in the criminal case it is settled that acquittal in the criminal case does not affect the result of the departmental proceeding and, therefore, his acquittal is of no help to the petitioner. The further case of the Board is that a post was kept reserved for the petitioner at the time when departmental proceeding was pending. After his dismissal on 4.5.95 (sic-4.5.85?) the post reserved for him automatically stood released. It was submitted at the stage of hearing that in any view, the petitioner having died during the pendency of this case there is no question of considering his case for promotion on the post of Assistant Controller on the basis of his past service. 6. Dr. Sada Nand Jha, appearing for the petitioner, submitted that in view of the death of the petitioner pendente lite his claim is confined to the benefit of pay fixation. In any view, no recovery should be made of any amount already paid to the petitioner after his death. 7. The basis of the claim of the petitioner is the letter of the Director of Personnel, dated 7.6.93, in the light of which letter dated 9.6.93 was issued by the General Manager, Patratu Thermal Power Station and pursuant to which the petitioner was appointed. It would be appropriate to quote the relevant part of paragraph 3 of the said letter containing the conditions of his appointment as under : (i) He may be reappointed afresh on the post of Operator i.e. the post held by him at the time of his discharge from his service. It would be appropriate to quote the relevant part of paragraph 3 of the said letter containing the conditions of his appointment as under : (i) He may be reappointed afresh on the post of Operator i.e. the post held by him at the time of his discharge from his service. (ii) He will not be entitled to claim for pay for the period, since date of termination of his service to the date of his re-employment afresh which is purely on compassionate ground. (iii) The intervening period from the date of his termination to actual date of his fresh employment will count for fixation of pay, increment and will also be treated continuous for pensionary benefit. (iv) If he has taken any terminal benefit the same will have to be refunded by him." As indicated above, whereas the counsel for the Board relied clauses (i) and (ii), on behalf of the petitioner reliance is placed on clause (iii). On behalf of the petitioner counsel submitted that even after re-employment the benefit of past service may be allowed vide decision in Banaras Hindu University & anr. V/s. Dr. Indra Pratap Singh, 1992 Supp (2) SCC 2, and State Bank of India V/s. D. Hanumantha Rao, (1998) 6 SCC 183 . In the case of Dr. Indra Pratap Singh the question for consideration was whether shifting from one institution to another or one University to another would result in break in service under the Merit Promotion Scheme evolved by the U.G.C.with a view to give incentive to teachers and to prevent stagnation etc. One of the conditions for earning promotion was that a lecturer must have eight years continuous service. As per para 2(a) of the Scheme the eight years service could be in more than one institution. The Supreme Court held that the Scheme permitted shifting from one institution to another and therefore interval or break-as a result of shiftingshould be construed as reasonable break-in-service for computing continuity of service. The point involved was thus quite different. The facts of the case of D. Hanumatha Rao (supra) were also entirely different. The case related to a doctor appointed under the Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971. The point involved was thus quite different. The facts of the case of D. Hanumatha Rao (supra) were also entirely different. The case related to a doctor appointed under the Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971. The said rule provided that for the purpose of seniority the appointee will be deemed to have been appointed in the service of the State Bank on the date of his appointment in the military service. A dispute arose when the respondent claimed the benefit of another provision of the said Rules granting extension of service to those appointed prior to 19.7.69. The Supreme Court held that though he was entitled to seniority from the date of his initial appointment in the Military Service he was not entitled to extension of service even though his initial appointment in the Military Service was prior to the cut-off date. In other words, the benefit of the deemed seniority was denied for the purpose of extended service. The decision, thus, was in fact against the respondent. 8 The other decisions cited on behalf of the petitioner were rendered in the context of rules of natural justice. In the facts and circumstances of this case and for the reason indicated hereinafter they do not appear to be relevant. 9. It is not in dispute that it was a case of fresh appointment or re-employment and in the absence of any rule the benefit of past service cannot be allowed to such a person. Clause (iii) would seem to support the petitioners case but there is an apparent contradiction between clause (i) and (ii) on the one hand and clause (iii) on the other. If it was fresh appointment or re-employment seniority has to be reckoned from the date of such appointment. In view of the death of the petitioner pendente lite the question of seniority for the purpose of promotion no more survives for consideration. The only question which survives is as to the benefit of pay fixation. I find enough force in the stand of the Board that the decision as contained in Annexure-7 was not a final decision inasmuch as it was not approved by the Board as required in terms of Reaulations dated 14.5.80. That, indeed, would also distinguish the case of the case of the petitioner from that of I.D. Jha and others. I find enough force in the stand of the Board that the decision as contained in Annexure-7 was not a final decision inasmuch as it was not approved by the Board as required in terms of Reaulations dated 14.5.80. That, indeed, would also distinguish the case of the case of the petitioner from that of I.D. Jha and others. Their cases were identical to those of Ramnandan Mahto and Bhuneshwar Pd. Mahto who got award in their favour from the Labour Court, as their re-employment was approved by the Board on 29.6.89 as noted above. How- ever, though it was a decision not in ac- cordance with the Regulations dated 14.5.80, it does not appear to be a case of fraud or misrepresentation by the peti- tioner either. The Chairman, pursuant to whose order Annexure-7 was issued by the Director of Personnel, should have placed the petitioners case for considera- tion of the Board pointing out similarity, if any, between his case and those of I.D. Jha and others. I am also inclined to think that petitioners appointment at Patratu Thermal Power Station instead of Barauni Thermal Power Station where he was ini- tially appointed and posted before dis- missal, was an act of favour. If he was to be reappointed, it should have been done at the Barauni Thermal Power Station where he was soon transferred within two years. The circumstances seem to suggest that the then Chairman and/or others took the decision to favour the petitioner which, perhaps, he did not deserve. However, with his death pendente lite these aspects of the case may not be gone into. 10. The solitary claim which remains outstanding relates to benefits of pay fixa- tion. By its impugned decision the Board, inter alia, directed that the petitioners sal- ary be fixed at the initial level of the rel- evant pay scale. The Board also directed that his past service will not count towards any benefit. Earlier, as noticed above, on 4.11.95 his erstwhile seniority was main- tained. The question of seniority is no more relevant. The question as to whether the past period should be counted for pay fixation or not, remains in issue. The Board also directed that his past service will not count towards any benefit. Earlier, as noticed above, on 4.11.95 his erstwhile seniority was main- tained. The question of seniority is no more relevant. The question as to whether the past period should be counted for pay fixation or not, remains in issue. By the fice order dated 4.11.95 fixing his seniority was cancelled with retrospective effect and his pay was re-fixed with effect from the date when the petitioner joined on his reappointment i.e. 12.6.93 with a direction to recover excess amount drawn by him. In the facts and circumstancesspecially after death of the petitioner pendente lite, I am of the view that it would not be proper to recover the amount already paid to the petitioner pursuant to the office order dated 20.6.2000, Annexure-20. The pay fixation by office order dated 15.2.2000, Annexure- 19, will stand. Thus, if any amount remains to be paid to the petitioner as salary and/or consequential claim as a result of salary the same shall be paid as per the said office order. However, any amount already paid in excess will not be recovered. To that extent the office order dated 20.6.2000 is modified. 11. The writ petition is disposed of in the manner indicated above. There will be no order as to costs.