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2003 DIGILAW 911 (PAT)

Vindeshwari Mishra v. State Of Bihar

2003-08-27

AFTAB ALAM

body2003
Judgment 1. Among the cases of retirai dues, coming to this court in large numbers, this case appears to be one of the most unfortunate ones. 2. The petitioner retired from service on 31.5.1981. When he failed to get his retiral dues even after four years of his retirement he came to this court in C.W.J.C. No. 5051 of 1989 which was allowed by a long and reasoned judgment, dated 27.6.1991 passed by a Bench of this court comprising the then Chief Justice and myself. In that judgment it was observed that the petitioner was made to suffer unnecessarily for ten years and strong directions were given for payment of all retiral dues to him with interest @ 15% per annum from the date of retirement till the date of payment of the dues; apart from interest the petitioner was also awarded Rs. 2500/- as exemplary cost. All the payments were directed to be made within a period of two months from the date of the judgment. 3. The directions given in that judgment were not carried out within the time specified therein and therefore, the petitioner filed M.J.C. No. 506 of 1993 for initiating a contempt proceeding against the respondents in the writ petition. But during the pendency of the contempt petition the court was informed that retiral dues payable by the Bihar State Road Transport Corporation were all paid to him and in that view the contempt petition was rejected on 22.9.1994. 4. Later, the State Government allowed provisional pension to the petitioner vide office order under letter no. 1460, dated 28.5.1996; subsequently the final pension was also sanctioned to him by letter no. 7912 dated 16.12.1998 on the basis of which the Accountant General issued the authority slip/payment order for payment of pension and gratuity. Later on, the authorities in the government department seem to have taken the view that the petitioner had obtained the orders sanctioning pension unauthorisedly, fraudulently and in collusion with some of the departmental staff. His pension was, therefore, stopped by letter, dated 22.1.2001 issued by the Executive Engineer, Patna Building Division, Patna and finally, by Order, dated 17.9.2002 his pension was cancelled and the earlier orders sanctioning provisional and final pension were recalled. His pension was, therefore, stopped by letter, dated 22.1.2001 issued by the Executive Engineer, Patna Building Division, Patna and finally, by Order, dated 17.9.2002 his pension was cancelled and the earlier orders sanctioning provisional and final pension were recalled. Thus, after 20 years of his retirement and after going through two earlier rounds of litigation the petitioner, now approaching the age of 80 years is once again before this court with the grievance that the payment of his retiral dues still remains unsettled. 5. On going through the pleadings of the parties and on hearing counsel appearing on their behalf this court finds that the government department and the Corporation are unable to put their acts together and as a result the petitioner is made to suffer and the order of this court passed ten years ago is effectively frustrated. The way in which the earlier order of this court is subverted suggests two courses of action. One is to hold an enquiry, identify the person(s) responsible for violating the courts direction and to give them the maximum punishment provided under the Contempt of Courts Act; the other is to take the view that there is no deliberate or wilful disobedience of this courts direction but the petitioner and the court are up against a bunch of babus who best symbolise the disfunctioning and inefficiency of the government department and the Corporation, who are unable to follow the plain and clear direction of this court and who do not even understand the implications of their own actions and statements. 6. I am inclined to take the second view because it appears to me that the whole mess is the result to administrative failure rather than a wilful design by any individual official(s). 7. The facts of the case are simple and brief and can be stated thus. The petitioner was a permanent employee of the State Government in the Public Works Department where he joined on 28.4.1944 as Store-keeper under the Executive Engineer, Patna Division, Patna. On 30.11.1953 he was relieved from there to join the post of Store-Keeper in the Transport Department (See Annexure-2). He joined the Transport Department on 1.12.1953. The petitioner was a permanent employee of the State Government in the Public Works Department where he joined on 28.4.1944 as Store-keeper under the Executive Engineer, Patna Division, Patna. On 30.11.1953 he was relieved from there to join the post of Store-Keeper in the Transport Department (See Annexure-2). He joined the Transport Department on 1.12.1953. In 1959 the Bihar State Road Transport Corporation was set up which took over all the functions performed at that time by the Political (Transport) Department of the government and the offices subordinate thereto in respect of Rajya Transport, Bihar. 8. At that stage, the Special Officer, Rajya Transport, Bihar by his letter dated 12.3.1959 (Annexure-3) asked the petitioner to give his consent to serve in the Corporation as Government servant on foreign service terms. The relevant extract from this letter is as follows: "The State Government have decided to form a statutory Corporation under the Road Transport Corporation Act, 1950 to manage the Nationalised Road Transport Services in the State with effect from 1.4.59. As you are a permanent Government servant on deputation to Rajya Transport, it is necessary to obtain your consent under rule 257 of the Bihar Service Code before you are transferred to foreign service. It may be noted here for your information that if you decide to continue to remain in the Corporation on foreign service you will continue to be Government servant and will be entitled to all facilities admissible to permanent Government servant". 9. The petitioner gave his consent to serve in the Corporation as government servant on foreign service by his letter dated 18.3.1959 (Annexure-4). Shortly thereafter the arrangement in regard to government employees, on deputation to Political (Transport) Department who opted to serve in the newly set up Corporation was laid down by government order no. 3404, dated April 30, 1959. The relevant extract from which is as follows: "(1) Permanent Government servants on deputation to Political (Transport) Department, employed in the Rajya Transport, Bihar, as on 30th April, 1959: The services of all permanent Government servants (including the technical staff) whose services are on loan to the Political (Transport) Department for employment in the Rajya Transport, Bihar, will be placed at the disposal of the Bihar State Road Transport Corporation on foreign Services terms with effect from the 1st May, 1959. The staff so deputed shall continue to enjoy under the Corporation, the same service conditions in respect of pay, increment, leave promotions and discipline as under Government, and, in addition, they will continue pensionary rights which will include the right to count emoluments for pension in respect of not only such posts or may be created by the Corporation on the 1st of May, 1959, in lieu of the posts in existence under Government on the afternoon of the 30th April, 1959, but also such new posts as may be created thereafter by the Corporation. The pensionary benefit admissible shall be subject to the same conditions and restrictions as may be applicable under the Pension Rules of the State Government for the time being in force, on the date of retirement of the staff." 10. Having thus continued in the Corporation on the basis of the consent given by him the petitioner was promoted as the Superintendent of Stores & Purchase in the year 1973 and was posted in the Central Workshop, Patna. His final posting was in the Central Stores, Phulwarisharif, Patna from where he retired on 31.5.1981. 11. As the petitioner was a permanent Government servant retiring from the Corporation while working there on deputation of foreign service terms, under the relevant rules his reitral dues were to be paid partly by the State Government (e.g. pension) and partly by the Corporation (e.g. gratuity). But the petitioner was not paid anything from his retiral dues even after eight years of his retirement and in that circumstance he came to this court in CWJC No. 5051 of 1989 (the first round of litigation). The writ petition was filed only impleading the Corporation and its officers as respondents but on the very first date the case was taken up by the court (11.7.1989) permission was given to the petitioner to add the State of Bihar as respondent no. 6. On 1.5.1991 a bench of this court passed the following orders in that case: "According to the Corporation, the petitioner was working with the Corporation on foreign service in terms of Annexure-7 to the writ petition. Further, according to the Corporation, he retired as a Government servant on foreign service. "There is no dispute that for the period the petitioner was in service with the Corporation, the latter is liable to pay the gratuity and other benefits to the petitioner. Further, according to the Corporation, he retired as a Government servant on foreign service. "There is no dispute that for the period the petitioner was in service with the Corporation, the latter is liable to pay the gratuity and other benefits to the petitioner. "Let this case be listed for admission on 21st of May, 1991. "We direct the Corporation to compute the amount which the Corporation is liable to pay and pay the same to the petitioner before the date. If the order is not complied with, appropriate action will be taken against the defaulting officer of the Corporation." 12. Finally, the case was taken up for final disposal before a bench comprising the Chief Justice and myself. At that stage the learned Advocate General appeared for the State. From the judgment, dated 26.11.1991 it appears that that writ petition was one of the earlier cases in which this court took serious note of the menace of retiral dues cases coming to the court in large numbers. The first half of the judgment is, therefore, devoted to dealing with the problem in a general way. Guidelines were laid down and directions were given to the State Government to settle the retiral dues of the employees effectively and without delay so that there may not be any need for them to knock the doors of this court for what is their lawful and legitimate due. In the second half of the judgment the case of the petitioner was examined specifically and strong directions were given to the Corporation to pay of the dues without any delay along with interest @ 15% and with payment of exemplary cost. 13. It is both distressing and ironical to note that the entire exercise by the court turned out to be futile. The general directions and guidelines laid down in the judgment are followed not in observance but in breach and deluge of retiral dues cases instead of abating has only increased with time. The directions given for the settlement of the reitral dues of the petitioner similarly remains disregarded. 14. Coming back to the case of the petitioner, it is to be noted that the judgment, dated 27.6.1991 in CWJC No. 5051 of 1989 proceeded on the premise that the petitioner was a permanent employee of the State Government. The directions given for the settlement of the reitral dues of the petitioner similarly remains disregarded. 14. Coming back to the case of the petitioner, it is to be noted that the judgment, dated 27.6.1991 in CWJC No. 5051 of 1989 proceeded on the premise that the petitioner was a permanent employee of the State Government. This would be evident from the opening passage dealing with the case of the petitioner: "Having laid down the procedure to be followed in general we shall now deal with the facts of this case so that we can pass a suitable order and give necessary directions. The petitioner joined the provincial Government in April 1944. He was a permanent employee of the State Government and lastly he was working in the Transport Department of the State Government x x x x." (emphasis added) 15 The decision then took note of the Government order no. 3404, dated April 30, 1959 and reproduced its contents in the judgment in extenso. The decision then took note of the case of the Corporation which was as follows: "As would appear from the order of the court dated 1st of May, 1991, the stand taken by the Corporation was that the petitioner was working with the Corporation on foreign service in terms of Annexure 9 to the writ petition and that he retired as a Government servant on foreign service. It was not disputed that for the period the petitioner was in the service of the Corporation, the latter was liable to pay the gratuity and other benefits to the petitioner. By the said order dated 1st of May, 1991, the court directed the Corporation to compute the amount which the Corporation was liable to pay the same to the petitioner before 21st of May, 1991." 16. The court then expressed its strong displeasure over the fact that ten years were spent in barren correspondence between the Corporation and the Government for the settlement of the retiral dues of the petitioner and finally directed the Corporation to pay all the retirement benefits to the petitioner within a period of two months from the date of the judgment after making adjustment of any amount paid to him till that date. For the delay caused in payment of retiral dues, the court awarded interest @ 15% per annum and exemplary cost of Rs. 2500/- payable by the Corporation. For the delay caused in payment of retiral dues, the court awarded interest @ 15% per annum and exemplary cost of Rs. 2500/- payable by the Corporation. As regards the Corporation receiving any reimbursement from the Government, this court made the following observations: "We make it clear that we are not going into the question as to whether the Corporation is entitled to any reimbursement from the State Government. That is a matter entirely between the Corporation and the State Government and this court in this writ petition has nothing to do with the same. However, if the Corporation so desires, it shall be entitled to take up the matter with the State Government but we make it clear that on that pretext the payments directed as above shall not be delayed." 17. Before proceeding further, it may be noted that the fact that the petitioner was a permanent Government employee, that he worked on deputation in the Transport Department and further that he continued to serve in the Corporation as a permanent employee on deputation on foreign service terms on the basis of the consent given by him in response to the letter, dated 12.3.1959 (Annexure 3) and in terms of the Government order, dated 30.4.1959 is established beyond doubt from the materials on record. Further, this position stands concluded by the finding in the previous judgment and order of the division bench of this court in the earlier writ petition filed by the petitioner being CWJC No. 5051 of 1989 and the finding in that judgment is fully binding upon the State as the State was one of the parties in that case and the judgment was passed after hearing the Advocate General appearing on its behalf. That being the position it is utterly mindless and meaningless to say (as is stated in the counter affidavit filed on behalf of the State) that the petitioner was not a Government employee because record pertaining to him were not available in the Department and he was, therefore, not entitled to any pension from the Government. All such statements made in the counter affidavit filed by the State are, therefore, to be rejected summarily. 18. All such statements made in the counter affidavit filed by the State are, therefore, to be rejected summarily. 18. Coming back to the developments in the case of the petitioner in pursuance of the directions given by this court certain payments were made to him by the Corporation (though beyond the time fixed in the judgment and for which a contempt petition was also filed against the Corporation). Later on the Government also sanctioned payment of pension to him but the payment of pension was first stopped and later cancelled by orders, dated 22.1.2001 and 17.9.2002 respectively and this writ petition is filed challenging the two orders. 19. Now, apart from the completely misconceived attempt to disown the petitioner as a Government employee, what are the reasons for cancelling the pension granted to him by the State Government earlier? It appears that there was some correspondence between the Corporation and the Building Construction Department of the Government in regard to their respective liabilities for payment of retiral dues to the petitioner, causes for the delay in the settlement of his retiral dues and on the issue of any reimbursement to the Corporation by the State Government. In the correspondence two things came to light. One, that the petitioner had received the amount of contributory fund from the Corporation and the other that orders for payment of pension to him were issued even though his service book was still in the Corporation and was not available in the Government Department. Mainly on the basis of the aforesaid two facts and circumstances the view was taken that the petitioner had obtained pension orders in his favour fraudulently and by taking some of the departmental staff in collusion. He was given a show cause notice to which it is said he failed to reply and finally the impugned order was passed cancelling the pension and recalling the orders by which pension was granted to him. 20. The entire facts and circumstances that led to cancellation of the pension granted to the petitioner is set out in detail in a letter, dated 12.8.2000 addressed by the Chief of Administration of the Corporation to the Executive Engineer, Building Construction Department of the Government (Annexure-B to the counter affidavit of respondents 1 and 5). 20. The entire facts and circumstances that led to cancellation of the pension granted to the petitioner is set out in detail in a letter, dated 12.8.2000 addressed by the Chief of Administration of the Corporation to the Executive Engineer, Building Construction Department of the Government (Annexure-B to the counter affidavit of respondents 1 and 5). This letter is on the subject of sending the service book of the petitioner for granting pension and the Chief of Administration tries to defend the Corporation against the charge of causing delay in the final settlement of the petitioners retiral dues. In this regard, it is stated that the petitioner was a permanent employee of Public Construction Department and he was in Transport Corporation on deputation on foreign service terms. And as such his service conditions were to be fixed by the Government and, accordingly, the Transport Corporation was to pay the amount of leave contribution, pension contribution to Public Construction Department so that on retirement from service he could get his retiral dues from the Government Department. But his service terms were not fixed by the Government and as a result the amount of his leave contribution/ pension contribution was not sent to the Public Construction Department by the Corporation and the petitioner also accepted the membership of C.P.F. scheme for the Corporation employee. 21. The acceptance of the C.P.F. scheme by the petitioner and his receiving the C.RF. amount when payments were made to him, following this courts earlier judgment is an oft repeated them not only in this letter but also in other parts of the respondents pleadings and that is one of the main grounds for denying him any pension from the State Government. 22. It is, thus, to be seen that under the relevant rules deductions from the petitioners salary/contribution by the Corporation were required to be regularly remitted to the government so that on his retirement the petitioner could get his retiral dues from the Government. But that was admittedly not done due to the default either on the part of the Government or the Corporation. And now a plea is taken that since the petitioner "accepted" the membership of C.P.F., he must be deemed to have waived his right of pension from the Government. The statement that the petitioner accepted the membership of C.P.F. appears to be pure fiction unsupported by an iota of evidence. And now a plea is taken that since the petitioner "accepted" the membership of C.P.F., he must be deemed to have waived his right of pension from the Government. The statement that the petitioner accepted the membership of C.P.F. appears to be pure fiction unsupported by an iota of evidence. All that happened seems to be this. Deductions of provident fund would be made from the petitioners salary every month, but, as the amounts were not being remitted to the Government, the deductions would be deposited like those of other employees of the Corporation in the C.P.F. account without any positive consent, acceptance or approval by the petitioner. The petitioner cannot be held liable for a unilateral act of the Corporation done behind his back in breach of the relevant service/pension rules. The allegation that he received the C.P.F. amount, including the Corporations contribution also does not make any sense. It is undeniable that at the time of making the payments, the Corporation did not give any account to the petitioner and did not tell him in clear terms that as part of his retiral dues, he was also being paid the amount of contributory fund, including the Corporations contribution. 23. According to Mr. M.P.Shukla, Advocate appearing for the petitioner this fact came to light only in the course of this case and he submitted that the petitioner was willing to refund the amount of the Corporations contribution provided he was given G.P.F. by the Government. In the aforesaid facts and circumstances, I have no hesitation in holding that the petitioner had never accepted the C.P.F. scheme and that cannot be made a ground for denying him pension by the Government. 24. As regards the cancellation of pension on the ground that pension orders were issued even while his service book was not available in the Government Department and it was lying in the Corporation, that also cannot be made a ground for denying pension to the petitioner. It is not the case that pension order was issued on the basis of any incorrect facts or on a suppression or misrepresentation of any material facts. 25. On hearing counsel for the parties and on a careful consideration of all the materials on record, I have no hesitation in holding that the impugned orders stopping and cancelling the petitioners pension are bad and invalid and wholly untenable in law. 25. On hearing counsel for the parties and on a careful consideration of all the materials on record, I have no hesitation in holding that the impugned orders stopping and cancelling the petitioners pension are bad and invalid and wholly untenable in law. The orders, dated 22.1.2001 (Annexure 7) and dated 17.9.2002 (Annexure-E to the counter affidavit filed by respondents 1 and 5) are accordingly quashed and following directions are issued: (i) The payment of monthly pension as sanctioned by letter no. 7912, dated 16.12.1998 must be restored to the petitioner forth-with. (ii) The petitioner must be paid his arrears of pension from the month it was stopped in pursuance of the impugned order of stoppage of pension till its restoration as directed by this order. The amount of arrear pension must be paid along with simple interest @ 7% per annum from the date of accrual till the date of payment. (iii) From the arrear pension the amount of Corporations contribution in C.P.F. (Rs. 27,465/-) shall be deducted along with 7% interest from the date of payment to the petitioner till the date of deduction and that amount shall be paid to the Corporation. The balance amount of arrears of pension would be payable to the petitioner. (iv) On the balance amount of provident fund received by the petitioner (i.e., after deducting Rs. 27,465/-), the State Government shall pay interest @ 10% from the date of his retirement till the date the payment was made to him by the Corporation. This would be in lieu of G.P.F. dues payable to the petitioner. (v) The payment of current pension will be restored without a single days delay and the other payments as indicated above shall be made to the petitioner by the State Government within two months from the date of receipt/production of a copy of this order in the office of the Secretary, Building Construction Department, Government of Bihar, Patna. (vi) No deduction other than the one indicated here-in-above shall be made from the amount payable to the petitioner. 26. The Secretary, Building Construction, Government of Bihar, the Accountant General, Bihar, the Administrator, Bihar State Road Transport Corporation and the Treasury Officer of the concerned treasury are made personally liable to carry out the directions strictly and faithfully. (vi) No deduction other than the one indicated here-in-above shall be made from the amount payable to the petitioner. 26. The Secretary, Building Construction, Government of Bihar, the Accountant General, Bihar, the Administrator, Bihar State Road Transport Corporation and the Treasury Officer of the concerned treasury are made personally liable to carry out the directions strictly and faithfully. It is made clear that any default or breach in complying with the directions will be deemed as wilful disobedience of the courts order and the court shall deal with the officer/person concerned for the default accordingly. 27. It is made clear that these directions are being issued in the special facts and circumstances of this case and this order is not be taken as a precedent. 28. In the result, this writ petition is allowed with the aforesaid directions.