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2003 DIGILAW 383 (JHR)

Dharam Deo Narayan Singh v. State Of Jharkhand

2003-03-26

SUDHANSU JYOTI MUKHOPADHAYA

body2003
JUDGMENT S.J. Mukhopadhaya, J. 1. The petitioner has challenged the decision of the Board of Governors of Regional Institute of Technology, Jamshedpur (RIT, Jamshedpur for short-now known as National Institute of Technology, Jamshedpur-NIT, Jamshedpur for short) communicated vide office order No. RIT (AA)-1642/99 dated 3rd June, 1999 whereby it decided to pay gratuity, leave encashment and other retiral benefits to its retiring employees on the basis of 58 years of age of superannuation instead of 60 years, which is the actual age of superannuation of an employee of RIT, Jamshedpur. Further prayer has been made by petitioner to direct the respondents to count the service" rendered by petitioner in one Deep Narayan Singh Regional Institute of Co-operative Management, Patna and Bokaro Steel Plant of Steel Authority of India Limited (SAIL for short) for the purpose of determination of retiral benefits to which he is entitled from RIT, Jamshedpur. 2. One of the questions requires determination in this case is whether the retiral benefits of an employee can be calculated on the basis of notional retirement age of 58 years or not, if the actual age of superannuation of an employee is 60 years. The other question is whether the service rendered by petitioner in another organisation not related with RIT, Jamshedpur can be counted for the purpose of determination of post retirement benefits to which petitioner is entitled from RIT, Jamshedpur. 3. According to petitioner, he rendered services in one Deep Narayan Singh Regional Institute of Co-operative Management, Patna from 1st June, 1965 to 5th February, 1973 and thereafter in the Bokaro Steel plant under the SAIL from 22nd February, 1973 to 5th October, 1976. Subsequently, he was appointed in RIT, Jamshedpur on 8th October, 1976 against non-teaching post and retired on 31st October, 2000 when he attained 60 years of age. The grievance of the petitioner is that the respondents are not calculating the retiral benefits on the basis of last pay drawn by him till he attained the age of 60 years. For the purpose of such calculation, such as pension, gratuity, leave encashment etc., notional 58 years of age of retirement is taken and payment is being made on the basis of last pay drawn at the age of 58 years. 4. For the purpose of such calculation, such as pension, gratuity, leave encashment etc., notional 58 years of age of retirement is taken and payment is being made on the basis of last pay drawn at the age of 58 years. 4. In the affidavit filed on behalf of RIT, Jamshedpur (now NIT), while it is accepted that the age of superannuation is 60 years and petitioner retired from the services of RIT, Jamshedpur on attaining the age of 60 years, taken plea that as the State Government employees retire at the age of 58 years, whereas the employees of RIT, Jamshedpur retire at the age of 60 years, to maintain parity with the State Government employees, it was decided to adopt same formula that of Government employee for determination of retiral benefits for the employees of Regional Engineering Colleges. So far as the rest prayer of petitioner to count the service rendered in other organisation and recovery of certain amount are concerned, while the respondents opposed the prayer, have given reason to recover certain amount on the ground of wrong fixation of pay since 1st April, 1997. 5. The employees of RIT, Jamshedpur (now NIT) are governed by the Memorandum of Association and the rules relating to establishment of the RIT, Jamshedpur. Therein, terms and conditions of service of permanent employees of the Institute laid down, as incorporated in Bye-laws. Under Rule-2 of the Bye- laws, while provisions for appointment to all posts in the Institute has been made, the age of superannuation has. Therein, terms and conditions of service of permanent employees of the Institute laid down, as incorporated in Bye-laws. Under Rule-2 of the Bye- laws, while provisions for appointment to all posts in the Institute has been made, the age of superannuation has. also been prescribed therein, as quoted hereunder : "Subject to the provisions of the Memorandum and these bye-laws, appointments to all posts in the Institute shall ordinarily be made on probation for a period of one year after which period the appointee, if confirmed shall continue to hold his office subject to the provisions of the Memorandum and bye- laws till he attains the age of 60 years, provided that the Board may in exceptional cases, grant extension of service or re-employ any member of the staff beyond the age of sixty." Under Rule 10(a), while it is made clear that the employees of the Institute shall comply with such service and conduct Rules as may be prescribed by the Board from time to time, under Sub-rule- (b) to Rule-10, the following provisions made : "In the absence of any specific rules in respect of the service of the Boards Employees or in respect of Financial regulations the corresponding rules of the Government of Bihar shall be followed." 6. Admittedly, there is no provision under the bye-laws to determine how the pension, gratuity or leave encashment be made. As per Sub-rule (b) to Rule-10 aforesaid, it is calculated on the basis of the relevant rule of the Government of Bihar, namely, Bihar Pension Rules, 1950. How the amount of pension is to be determined laid down under Chapter-VII (Section 1) of the Bihar Pension Rules, 1950 (RuleT136 onwards), under Section (ii) of the same chapter, the determination of superior pension which includes gratuity has been stipulated. Separate instructions have been issued to compute pension and gratuity, as mentioned in Appendix-5 of the Bihar Pension Rules, 1950. As per the aforesaid provisions under the Bihar Pension Rules, 1950, the computation of pension, gratuity or the leave encashment is not dependant on the age of 58 years but is dependant on the last pay drawn and the total number of years of service rendered by an employee. 7. As per the aforesaid provisions under the Bihar Pension Rules, 1950, the computation of pension, gratuity or the leave encashment is not dependant on the age of 58 years but is dependant on the last pay drawn and the total number of years of service rendered by an employee. 7. From the aforesaid fact, it will be evident that for computation of pension, gratuity or leave encashment, 58 years of age has no relevancy, nor it has any nexus with the object to achieve, the age of superannuation of the employees having fixed 60 years. Further, the age of superannuation of employees of RIT, Jamshedpur, including the petitioner being 60 years, the respondents cannot curtail two years of service rendered by them for the purpose of computation and fixation of pension, gratuity and leave encashment Such curtailment of two years of service, notionally fixing the retirement benefit on the basis of imaginary age of superannuation of 58 years having no nexus with the object to achieve i.e. grant of retiral benefits, is arbitrary and ultra vires being violative of Article 14 of the Constitution of India. Thus, the first question as raised is answered and decided against the respondents and in favour of petitioner. So far as the second question is concerned, in fact, no specific pleading has been made by petitioner, nor the petitioner brought on record any relevant provision to suggest that the service rendered by petitioner in other organisation to be counted. The Deep Narayan Singh Regional Institute of Co-operative Management, Patna is a separate body, stated to be a Co-operative Society. Similarly, Bokaro Steel Plant of SAIL is another organisation. There was no agreement reached between those organisations and the RIT, Jamshedpur to suggest that the service rendered in the earlier organisations will be counted for determination of total period of service in the subsequent organisation. No such law has been brought on record by the petitioner. 8. In the circumstances, the service rendered by petitioner in Deep Narayan Singh Regional Institute of Co-operative Management, Patna or Bokaro Steel Plant, Bokaro cannot be counted for determination of retiral benefits to which the petitioner is entitled to receive from RIT, Jamshedpur. No such law has been brought on record by the petitioner. 8. In the circumstances, the service rendered by petitioner in Deep Narayan Singh Regional Institute of Co-operative Management, Patna or Bokaro Steel Plant, Bokaro cannot be counted for determination of retiral benefits to which the petitioner is entitled to receive from RIT, Jamshedpur. The respondents have also brought on record that the petitioner has already drawn the terminal benefits to which he was entitled having worked in the Deep Narayan Singh Regional Institute of Cooperative Management, Patna and Bokaro Steel Plant, Bokaro. He having received such benefits as back as in 1976, before/ immediately on Joining in RIT, Jamshedpur, cannot claim to count the period of service rendered in those organisations for payment of retiral benefits from RIT, Jamshedpur. The second question is, thus, decided against the petitioner and the second part of the prayer as made by petitioner is rejected. The first question having determined in favour of petitioner and against the respondents, the decision of the Board of Governors as contained in Memo No. 1642/ 99 dated 3rd June, 1999 so far it relates to computation and fixation of gratuity and leave encashment and other retiral benefits treating 58 years of age of superannuation is concerned. It is set aside. The respondents are directed to fix the retiral benefits to which the petitioner is entitled on the basis of last pay drawn by him when he retired on attaining the age of 60 years. If any amount is found payable, be paid in favour of petitioner, after adjustment of the amount already paid within a period of two months from the date of receipt/production of a copy of this order, failing which the respondents will be liable to pay the interest @ 5% from the date of retirement till it is paid. 9. The writ petition is allowed in part.