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2004 DIGILAW 1080 (PAT)

Dina Nath v. Patna Municipal Corporation

2004-10-06

RADHA MOHAN PRASAD

body2004
Judgment 1. This matter has come up on filing of affidavit on behalf of the petitioner pursuant to the liberty granted vide order dated 23.1.2004 whereby this writ petition alongwith other writ petitions were disposed of in terms of the directions given in the order dated 19.9.2003 disposing of CWJC No. 7054 of 2003 and several other writ petitions by common order with only modification that two paragraphs affidavit personally sworn by the concerned authority regarding compliance must be filed by 9th March, 2004 and this Court directed that the parties would be bound by the said direction and they should proceed in the matter accordingly. In the said order passed in CWJC No. 7054 of 2003 this Court gave liberty to the petitioners to file two pages affidavit for revival and initiating action in case of non-compliance of the order within the stipulated time and further directed that the authority concerned shall be liable to pay a cost of Rs. 5,000/- from his pocket. 2. In the Affidavit at Flag X filed on 21.7.2004 it is alleged that despite the direction of this Court the respondents have not paid the gratuity, provident fund with interest, leave encashment, D.A., L.I.C. and other admissible amount. The petitioners father was working as Safai Mazdoor in Patna Municipal Corporation who retired and ultimately died without getting the said dues. 3. On 23.9.2004 it was admitted on behalf of the Chief Executive Officer that the order was not complied as compliance report was not filed. However, it was contended that a sum of Rs. 32,246/- after deduction of excess payment of Rs. 50,080/- on account of work done beyond the actual date of superannuation was paid vide Memo No. 515/estab. dated 11.6.2002 in compliance of the earlier order passed in CWJC No. 7885/2001 which was also disposed of in terms of general direction given in the Rukmini Devis case. 4. In view of the law settled on the said issue by this Court in the case of Kaushalya & Ors. dated 11.6.2002 in compliance of the earlier order passed in CWJC No. 7885/2001 which was also disposed of in terms of general direction given in the Rukmini Devis case. 4. In view of the law settled on the said issue by this Court in the case of Kaushalya & Ors. V/s. State of Bihar, reported in 2000(1) PLJR 505 , following a larger Bench decision of the Supreme Court in the case of State of Bihar V/s. Narasimha Sundram, reported in AIR 1994 S.C. 599 , this Court vide order dated 23.9.2004 having prima facie found that the order of this Court had not been complied and the Chief Executive Officer has acted in gross violation of the said order suo motu directed for initiating contempt proceeding against him, and he was directed to personally appear and file his show cause on 27.9.2004 when the matter was directed to be listed for final disposal. 5. In the show cause filed by the Chief Executive Officer on 29.9.2004 also it is admitted that the aforementioned order was not complied. A plea has been taken that the service record of the petitioner could not be placed before him in time and he could not know regarding this case properly. Further, it is stated that while calculating the death cum retiral benefit of the petitioner it was discovered that the petitioners father ought to have retired on 31st March, 1993 from the post of Safai Mazdoor attaining the age of superannuation but he continued to work beyond the period of service unauthorisedly and illegally since February, 1996. It appears that the word since is a mistake and in fact he continued to work till February, 1996. Thus, according to the said respondent, in obedience to the direction of this Court the respondent examined the relevant record of the petitioner and found that in compliance of the earlier order passed in CWJC No. 7885/2001 all admitted dues amounting to Rs. 32,246/- was paid to the petitioner vide Memo No. 515/Estb. dated 11.6.2002. According to the said respondent, it is true that this Court in its judgment dated 2.9.1999 in CWJC No. 8527/1998 (Kausalya V/s. The State of Bihar & Ors.) and analogous cases held that the payment of salary for the service rendered beyond the actual date of superannuation without any manipulation or misrepresentation cannot be recovered from the retiral benefit. According to the said respondent, it is true that this Court in its judgment dated 2.9.1999 in CWJC No. 8527/1998 (Kausalya V/s. The State of Bihar & Ors.) and analogous cases held that the payment of salary for the service rendered beyond the actual date of superannuation without any manipulation or misrepresentation cannot be recovered from the retiral benefit. However, in paragraph 10 it is stated that similar question with regard to recovery of excess payment by way of salary for working for the period beyond the age of superannuation from the post retiral benefits cropped up in case of another employee of the P.M.C. namely Mostt. Nathia V/s. The Patna Municipal Corporation & Ors., which was initially listed before the learned Single Judge, who after taking into consideration the judgment in the case of Rajendra Prasad V/s. The State of Bihar & Ors., (CWJC No. 9631/1999) disposed of on 8.3.2001 [reported in 2001(3) PLJR 143 ] referred the matter to the Division Bench for setting the controversy in the judgment of Kaushalya V/s. The State of Bihar & Ors., reported in 2000(1) PLJR 505 , and the judgment of Rajendra Prasad V/s. The State of Bihar & ors., reported in 2001(3) PLJR 143 . It is further stated that the aforementioned matter of Most. Nathia V/s. The Patna Municipal Corporation was heard by the Division Bench of this Court comprising of Hon ble Mr. Justice Nagendra Rai, the then Acting Chief Justice and Hon ble Mr. Justice S.N. Hussain and their Lordships held that the decision in that case of the authorities to recover the amount is correct one. Thus, according to the said respondent, in the facts and circumstances aforementioned, the petitioner has received all the admitted dues of death-cum-retiral benefit vide the aforementioned order dated 11.6.2002 and he expressed his inability to upset the order of his predecessor or redegined the same by further making payment of the deducted amount in view of the given facts and circumstances. Accordingly, the respondent Chief Executive Officer contended that he has highest regard and reverence for this Hon ble Court and he has never acted in disregard of the order of this Court. 6. Accordingly, the respondent Chief Executive Officer contended that he has highest regard and reverence for this Hon ble Court and he has never acted in disregard of the order of this Court. 6. Learned counsel for the petitioner contended that in view of the fact that following the Supreme Court decision law had been settled on 2.9.1999 in the case of Kaushalya V/s. The State of Bihar, which was with respect to the employee of the respondent Corporation much before disposal of the claim of the petitioner by the order dated 11.6.2002 and following the said decision several other employees were given the same benefit, the then Chief Executive Officer committed gross contempt by making deduction of Rs.50,080/- against the payment made for the work taken from the deceased employee beyond the age of superannuation, i.e. from April, 1993 to February, 1996. Learned counsel submitted that even the present Chief Executive Officer has committed gross contempt as is evident from the fact that even at the time of disposal of the present matter the orders passed by the Division Bench in the case of Most. Nathia V/s. Patna Municipal Corporation & Ors., had not come into existence till the time within which the claim of the petitioners was required to be disposed of obviously in the light of law settled till then. According to the learned counsel in view of the decision of the larger Bench of the Apex Court in the case of State of Bihar V/s. Narasimha Sundram (supra) on consideration of which this Court in the case of Kaushalya V/s. The State of Bihar held that such recovery is not permissible, the Chief Executive Officer has acted in gross contempt of this Court by not disposing of the claim within the prescribed time in the light of the said judgment and now defending himself by relying upon the order passed by the Division Bench in the case of Most. Nathia V/s. Patna Municipal Corporation & Ors. (supra). Learned counsel contended that in the case of Most. Kanti Devi & Ors. V/s. The State of Bihar & Ors. Nathia V/s. Patna Municipal Corporation & Ors. (supra). Learned counsel contended that in the case of Most. Kanti Devi & Ors. V/s. The State of Bihar & Ors. (L.P.A. No. 1145 of 2002) disposed of on 31.10.2002 earlier Division Bench on consideration that there was nothing against the petitioner that he may have committed any misrepresentation or fraud so as to extract from the period of retirement held that there is no occasion for recovery of the amount which was paid to the petitioner for having worked but after the period of retirement. 7. Mr. Chandra Shekhar, learned Senior counsel appearing for the Chief Executive Officer, has ventured to defend the action of the respondent Chief Executive Officer by submitting that in the facts and circumstances and there being conflicting decision of two Division Benches the contemnor cannot be held to be guilty of contempt. He further submitted that in view of the conflicting decisions of the Division Bench the proper course is to refer the matter to the larger Bench to resolve the dispute and settle the law. In support of this he placed reliance on the decision of the Apex Court in the case of Lala Shri Bhagwan & Anr. V/s. Ram Chand & Anr., reported in AIR 1965 S.C. 1767 . 8. In reply learned counsel for the petitioner contended that the decision of the earlier Division Bench in the case of Most. Kanti Devi & Ors. V/s. The State of Bihar & Ors., has not been brought to the notice of the subsequent Division Bench in the case of Most. Nathia V/s. Patna Municipal Corporation & Ors., He submitted that the decision of the Apex Court which was the basis of the decision of this Court in the case of Kaushaiya V/s. The State of Bihar has also not been considered in the case of Most. Nathia. As such, he contended that the decision of the Division Bench in the case of Most Nathia is per incuriam. Nathia. As such, he contended that the decision of the Division Bench in the case of Most Nathia is per incuriam. Learned counsel also contended that even recently in the case of Kaiiash Singh V/s. State of Bihar & Ors., reported in 2004(1) PLJR 289, the Apex Court set aside the order of this Court and directed that no recovery of the salary paid to the appellant for the period beyond the age of his superannuation i.e. 1.4.1995 to 24.4.2000 shall be made and further directed that the post retirement benefits shall also be worked out accordingly. Thus, it has been submitted that the decision of the Apex Court in the case of Lala Shri Bhagwan & Anr. V/s. Ram Chand & Anr. (supra) has no application to the facts and circumstances of the present case. 9. I find substance in the submission of the learned counsel for the petitioner. In the case of Lala Shri Bhagwan & Anr. V/s. Ram Chand & Anr. (supra) the facts were completely different and even on the question of precedents the Apex Court held that the single Judge of High Court inclined to differ from view taken by earlier Division Bench or a single Judge of the High Court, he should refer the matter to larger Bench or place papers before Chief Justice to enable him to constitute larger Bench. In the present case the question is as to whether the decision of the larger Bench of the Apex Court in the case of the State of Bihar V/s. Narasimha Sundram relying upon which this Court pronounced the decision in the case of Kaushalya V/s. State of Bihar (supra) is binding upon this Court or the decision of the Division Bench in the case of Most. Nathia V/s. P.M.C. & Ors. which has not taken into consideration the said decision of the Apex Court. The Constitution Bench of the Apex Court in the case of Punjab Land Development & Reclamation Corporation Ltd. V/s. Presiding Officer, Labour Court, Chandigarh & Ors., reported in (1990)3 SCC 682 , while dealing with the meaning and effect of the decision per incuriam held that non-reference to the earlier larger Bench decision of the Supreme Court will make the subsequent decision of the Supreme Court per incuriam if the ratio of the earlier decision is in conflict with it. In the case of State of Bihar V/s. Narasimha Sundram (supra) the respondent had retired as an Executive Engineer under the appellant State on the basis of his true age on 31.1.1988 but remained in service till 30th September, 1989. allegedly by playing fraud on the department. By a writ petition out of which the appeal arose the respondent claimed his salary from February, 1988 to September, 1989 besides other relief. The High Court by the impugned judgment allowed both the reliefs. The Apex Court dealing with the question of payment of arrears of salary did not find any merit in the contention of the learned counsel for the appellantthe State of Bihar that the respondent can be refused his emoluments for the period in question as no proceedings were ever initiated for enquiry as to the alleged fraud played by the respondent on the department. In the absence of denial that the respondent worked till 30th September, 1999 the Apex Court affirmed that part of the impugned judgment of the High Court which referred to the salary and accordingly, directed that the respondent should be paid his arrears of salary, if not already paid, within two months from that date. 10. As such, on account of non-reference of the earlier Division Bench decision of this court in the case of Most. Kanti Devi as welt as the decision of the Apex Court in the case of State of Bihar V/s. Narasimha Sundram (supra) by the Division Bench in the case of Most. Nathia V/s. P.M.C. & Ors. makes the said decision per incuriam and not binding. There cannot be any dispute to maintain the healthy principles of judicial decorum and propriety and in my opinion, the judicial discipline demands to respect the verdict of the highest Court of the land following the law of precedence and not to ignore it. Article 141 of the Constitution of India also provides that the law declared by the Supreme Court is binding on all Courts within the territory of India. 11. Moreover, according to the Division Bench decision in the case of Most. Nathia also no Government servant can claim any benefit by his/her own wrong or misdeeds. Article 141 of the Constitution of India also provides that the law declared by the Supreme Court is binding on all Courts within the territory of India. 11. Moreover, according to the Division Bench decision in the case of Most. Nathia also no Government servant can claim any benefit by his/her own wrong or misdeeds. Thus, obviously the Division Bench was also of the view that such benefit is not to be given for his/her own wrong or misdeeds with regard to which the law is settled by the Apex Court and following the same the Division Bench of this Court comprising of Hon ble Nagendra Rai, J. and Hon ble S.K. Katriar, J. in the case of Bihar State Electricity Board & ors. V/s. Madan Mohan Prasad & Ors., reported in 2001(2) PLJR 58 , in paragraph 8 held that money benefit paid to an employee in excess of his entitlement should not normally be recovered from him after a long lapse of time, particularly after his superannuation from service, subject to two exceptions, namely, if the order granting the money benefit itself stipulates that the same is liable to be recovered if found erroneous at a later stage or is subject to approval by authorities. The second exception is that such a money benefit can be recovered if it is found at any later stage that the same had flowed to the employee on account of fraud, misrepresentation or the like attributable to him. 12. Thus, I do not find that the law laid down by the Division Bench in the case of Most. Nathia (supra) is in conflict with the law settled by this Court as well as by the Apex Court. There cannot be any dispute that no Government servant can claim any benefit for his/her own wrong or misdeeds but a finding to that effect is required obviously after complying with the rules of natural justice particularly in a case of menial/illiterate staff of the Corporation. This appears to be the reason why the Division Bench in the case of Most. Kanti Devi & Ors. V/s. The State of Bihar & Ors. This appears to be the reason why the Division Bench in the case of Most. Kanti Devi & Ors. V/s. The State of Bihar & Ors. (supra) on consideration of fact that there was nothing against the petitioner that he may have committed any misrepresentation or fraud so as to extract from the period of retirement held that there is no occasion for recovery of the amount which was paid to the petitioner for having worked but after the period of retirement. In fact denial of payment for the work taken would be against all cannons of justice and equity and contrary to fundamental rights guaranteed under Article 23 of the Constitution which prohibits traffic in human beings and begar and other similar forms of forced labour and contravention of the said provision is an offence punishable in accordance with law, of course, except in the case of misrepresentation or fraud which vitiates the entire action and for which such protections are not available in law. In the present case it is not even alleged that the deceased employee continued to work beyond the age of superannuation by committing fraud or misrepresentation. 13. This Court thus finds that the respondent Chief Executive Officer has committed contempt by not disposing of the claim in the light of the law settled as until the date fixed for disposal of the claim of the petitioner by the order violation of which has been complained and his defence based on the later Division Bench order aggravates the contempt. Accordingly, this Court holds the respondent Chief Executive Officer guilty of committing contempt. However in the facts and circumstances the Chief Executive Officer is given opportunity to purge himself by paying the amount recovered within three days failing which this Court shall consider about the punishment on the next date. 14. Put up this matter on Monday next(11.10.2004).