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2004 DIGILAW 722 (PAT)

Kapil Deo Sah v. Tilkamanjhi Bhagalpur University

2004-07-21

R.M.PRASAD

body2004
Judgment R.M.Prasad, J. 1. In this writ petition, petitioner is aggrieved on account of denial of due payment of retrial dues including difference of revised scale, arrears of dearness allowance, deferred DA etc., which, according to him comes to the tune of Rs. 7,00,081.30. 2. According to the stand of the respondents in the supplementary counter affidavit filed on behalf of respondent Nos. 1 to 5, petitioner is entitled for a sum of Rs. 68,881.00 on account of gratuity, and Rs. 36,891.00 on account of leave encashment and Rs. 24,939.00 on account of group insurance. Thus, it is stated that on the aforesaid three heads, petitioner is entitled for Rs. 1,30,711.00 as per the fresh calculation chart, a copy whereof has been annexed as Annexure-H to the said supplementary counter affidavit. According to the said respondents, the petitioner has received excess amount of Rs. 3,55,427.00 on the basis of higher scale, which was not admissible to him, and, as such, after adjusting the said amount from the aforementioned amount found payable a sum of Rs. 2,24,716.00 is to be recovered from him. 3. There appears to be some dispute regarding exercise of option in the light of the Statute, contained in chancellors letter No. BSU-52/80-5285 GS (I) dated 18.11.1980. 4. According to the case of the petitioner, vide letter No. BSU-52/80-5285 GS (U) dated 18.11.1980, the statute governing post retirement benefits of the retired employees of the University in Bihar was introduced and was made effective from 1.4.1972. The said scheme was known as tipple benefit scheme and the said scheme were as follows :- - (i) General Provident Fund-cum-Pension-cum-Gratuity Scheme (Appendix-A). (ii) Contributory Provident Fund-cum-Gratuity Scheme, in which employees contribution to Provident Fund shall be limited to 8% of the pay of the employee (Appendix B), and (ili) Contributory Provident Fund only in which the employers contribution shall be 10% of the pay of the employee. It is stated that Art. 3 of the said statute provides that the employees of the University appointed before 1.4.1978 had to exercise their option for one of the aforesaid scheme and for the employees appointed on or after 1.4.1978, Scheme A i..e. GPF-cum-Pension-cum-Gratuity was made applicable. It is stated that Art. 3 of the said statute provides that the employees of the University appointed before 1.4.1978 had to exercise their option for one of the aforesaid scheme and for the employees appointed on or after 1.4.1978, Scheme A i..e. GPF-cum-Pension-cum-Gratuity was made applicable. As per the said statute an employee had to exercise his option in writing to the Registrar within three months from the date of issuance of the said statute dated 18.11.1980 and any option exercised after the date fixed was not to be considered, and, further, the option once exercised was to be final. The case of an employee, who does not exercise his option within the time fixed is to be covered by the General Provident Fund-cum-Pension-cum-Gratuity Scheme (Apendix-A). It is stated by the petitioner that the Registrar of the respondent University vide reference No. A/766-806 dated 24.4.1981/8.5.1981 issued a letter to all heads of the P.G. Departments and all principles of constituent colleges of the respondent University (Annexure-7)-to notify the said statute and to obtain the option in the proforma from the teachers and non- teaching employees and send the same in a consolidated form to the Finance Officer, Bhagalpur University by 31st May, .1981 for necessary action. According to the petitioner, pursuant to the said notification, the petitioner could not exercise his option, and, therefore, in view of the provisions of the statute dated 18.11.1980, the case of the petitioner automatically fell within the GPF-cum-Pension-cum-Gratuity Scheme. 5 Earlier in the counter affidavit filed on behalf of respondent Nos. 1 to 5 in reply to the said statements, it is stated that the petitioner exercised his option in favour of Group B of the Scheme Contributory Provident Fund-cum-Gratuity on 31.1.1983. Hence, he is not entitled to the benefit of Group A i.e. General Provident Fund-cum-Pension-cum-Gratuity. However, in the year 1985 the petitioner revised his option in favour of Group A and a sum of Rs. 5,928.00 has been paid to him for the month of February, 2003. Later the State Government vide letter No. 1/41-11/2003 H.E. 605 dated 29.7.2003 informed the University that the employees are not entitled to revise their option after the due date of option i.e. 25.11.1982 to 21.2.1983, and, accordingly, as per the valid option (Group B) a sum of Rs. 1,53,934.00 was payable to the petitioner, out of which a sum of Rs. 1,53,934.00 was payable to the petitioner, out of which a sum of Rs. 40,000.00 has already been paid to him and balance of Rs. 1,13,934.00 minus Rs. 5,928.00 i.e. a sum of Rs. 1,08,006.00 is yet to be paid. 6. This Court on 29.6.2004 found that the affidavit was vague, and, thus, on the prayer made on behalf of the said respondents, as a last indulgence, the matter was adjourned. Thereafter, a supplementary counter affidavit on behalf of the said respondents has been filed on 16.7.2004 to which photostat copy of earlier option exercised on 22.1.1983 has been annexed as Annexure-B. 7. Petitioner has filed Interlocutory application bearing IA No. 3349 of 2004 for grant of additional reliefs i.e. quashing of Annexure-G to the supplementary counter affidavit, which is a chart showing alleged excess payment as it is alleged that re-fixation of petitioners salary has been made contrary to the resolution of the respondent University and further also has challenged the validity of Annexure-H, which is a calculation chart with respect to the admissible dues. It is alleged that the respondent authorities for the purpose of mis-leading this Court has not annexed Annexure-B in its original form and has annexed the same after its distortion. In paragraph-3 of the said petition, it is, however, stated that the statement of the respondent authorities that the petitioner originally opted for scheme B on 31.1.1983 is outrightly a false and mis-leading statement and it has been reiterated that he had not exercised his option pursuant to the original statute of the year 1980 and, hence, his case automatically became the case of no option for which scheme of General Provident Fund-cum-Pension-cum-Gratuity is admissible/applicable. In the said petition the genuineness of Annexure-B has not been denied. The petitioner has, rather, admitted about the re-exercise of option by him under revised statute for Scheme B and got his option form forwarded by his controling authority on 31.1.1983 and submitted the same on 18.5.1983 i.e. much after the cut off date. However, according to him, in the facts and circumstances aforementioned the case of the petitioner became the case of no option. 8. However, according to him, in the facts and circumstances aforementioned the case of the petitioner became the case of no option. 8. In the earlier supplementary counter affidavit in reply to the said IA No. 3349 of 2004, the respondents specifically asserted about the exercise of option by the petitioner for Group B on 22.1.1983, which was accepted and counter signed by the Registrar on 31.1.1983, and, it is stated that the same was also entered in the register at serial No. 333 on 31.1.1983. 9. Learned counsel for the petitioner, however, contended that in absence of exercise of option pursuant to the earlier statute of the year 1980, exercise of option under latter statute is of no consequence and to the case of the petitioner shall be governed by Group A of the scheme. 10. Mr. Pandey, learned counsel appearing for the University submitted that the statutes for grant of retirement benefits to employees of the Bihar/Ranchi/ Bhagalpur/Magadh/LN. Mithila/K.S.D. Sanskrit Universities was approved by the chancellor vide letter No., BSU-52/80-5285 G.S. (I) dated 18.11.1980 as amended by letter No. BSU-52/80/2158-GS (I) dated 25.11.1982 in force from 14.11,1980 and pursuant to sec. 4 of the said amended statute all the employees to whom the statutes apply and who joined service in the University/Constituent Colleges before the 1st April, 1978 and were still in service or retired on or after 1.4.1972 and were alive on the date of notification of the rules were required to send option in writing to the Registrar within three months of the date of such notification, and, the option once exercised was to be treated as final. According to him, as the statute finally was amended on 25.11.1982, three months period for exercise of option ended on 25.2,1983, whereas the petitioner admittedly exercised his option vide Annexure-B on 22.1.1983 for Group B of the scheme. Under such circumstances, the contention of the petitioner that his case will be governed by Group A of the scheme is not at all tenable. He further submitted that earlier fixation of pay of the petitioner was provisional and it has been re-fixed on the basis of pay fixed by the State Government vide letter No. 841 dated 13.4.1991 (2) as the University is bound by it. 11. I find substance in the submission of Mr. Pandey, learned counsel for the University. He further submitted that earlier fixation of pay of the petitioner was provisional and it has been re-fixed on the basis of pay fixed by the State Government vide letter No. 841 dated 13.4.1991 (2) as the University is bound by it. 11. I find substance in the submission of Mr. Pandey, learned counsel for the University. However, if the petitioner feels aggrieved by his fixation of pay by the State Government, he will be at liberty to assail its validity before the appropriate authority/forum in an appropriate proceeding. 12. This Court also Finds substance in the submission of Mr. Pandey, learned counsel for the University regarding exercise of option by the petitioner. In view of the amended statute any non-exercise of option under so-called earlier statute as claimed by the learned counsel for the petitioner cannot have any bearing on the exercise of option as per the amended statute, validity of which is not under challenge nor can be challenged. Under the amended statute all the employees, to whom the said statute applied who joined service in the University/Constituent Colleges before the 1st April, 1978 or still in service or had retired on or after 1.4.1972 and were alive on the date of notification of the said statute were allowed to exercise the option in writing to the Registrar within three months and since pursuant thereto the petitioner exercised his option vide Annexure-B for Group B of the scheme, such exercise became final and he cannot be allowed to change. In my opinion, the earlier so-called option or the latter option on the face of the option exercised under the valid statute will be of no consequence in the matter of grant of retirement benefits. As regards refixation of pay by the State Government, the University has no option but to act accordingly, and, thus, there is no error in calculation of the dues by the University on that basis. 13. However, Mr, Prasad, learned counsel appearing for the petitioner contended that in any view of the matter there cannot be any question of recovery of the alleged excess payment prior to retirement from the retiral dues in view of the law settled as it is not even alleged that the so-called wrong fixation of pay was done on account of any representation/mis-representation or fraud committed by the petitioner. In support of this, he has placed reliance on the decision of Apex Court in the case of Sahib Ram V/s. State of Haryana and Ors., 1995 Supp. (1) SCC 18 and the decision of this Court in the case of Sushma Prasad V/s. State of Bihar and Ors., 2000 (2) PLJR 96 . 14. This Court finds substance in the submission of Mr. Prasad. In view of the law settled recovery of the alleged excess payment cannot be made except in the case of representation/mis-representation or commission of fraud by the petitioner. 15. Accordingly, writ petition is disposed of with a direction to the Vice-Chancellor/Registrar/Finance Officer of the University to pay the remaining recovered amount to the petitioner within a week, falling which the petitioner will be at liberty to file two pages affidavit for revival and for taking appropriate action.